As we begin this summer’s court break, the debate about how much time judges actually put in on the Bench has been rekindled by a casual remark from a member of the Prime Minister’s Economic Advisory Council, who said that judges work only for a few hours a day, take long vacations and need to modernise.
The question of whether judges sit for 200 days or 365 is a red herring. It spins court timings and vacations to mean “this is why there are arrears”. It creates the impression that if judges stayed longer on their benches, instead of swanning off on holiday, arrears would magically disappear and all would be well. To respond by saying that judges are overburdened and need to blow off steam in fine holiday spots while litigants languish plays into a manufactured imagery of lack of accountability or discipline amongst a pampered privileged elite.
True, a few more weeks of active sittings or even uninterrupted court time is not a bad idea and will go some way towards placating those chafing under delays. But too many other things that have lain unattended at the door of both the judiciary and the executive, are more responsible for the problem of arrears than judges’ vacations.
For one, there is the vexed question of too few judges. No state has its full complement of judges: Not in the high courts and not in our many lower courts. High court vacancies average 30 per cent but can touch nearly 50 per cent. Subordinate court vacancies average 22 per cent. But Bihar and Meghalaya clock in vacancies above 30 per cent — ongoing for over three years. According to the India Justice Report, as of June 2020, on average, a case remained pending in the subordinate courts for three years and in high courts, at 2022 figures, for five years.
Litigants want a quick resolution to their issues, but with pendency being what it is they can’t hope to get it and overburdened judges can’t give it.
Shortfall in judges is measured against “sanctioned” strength — the number designated as necessary, given the workload. However, as long ago as 1987, the 120th report of the Law Commission recommended there should be 50 judges per 10 lakh population. At just 15 judges per 10 lakh population nearly four decades later, even this hugely inadequate figure has not been reached. Meanwhile, each of India’s BRICs partners has way more judges to serve their populations.
Several other factors contribute to the problem, including the types and complexity of cases each judge must deal with, and the stratagems used by lawyers to prolong trials for their clients’ advantage. Courtrooms are being built, but are still in short supply and too many in use are sub-optimal. Nationally, support staff shortages average 26 per cent. One court clerk or one typist missing anywhere means delay becomes inevitable, however diligent the judge.
Quality deficits amplify structural inadequacies. Uneven acumen in both language and learning at the bar and the bench leads to endless procedural delays while the mismatch between proficiency of language, clarity of argument and final outcome opens the door to ever more appeals.
A permissive and perhaps collusive culture within the legal fraternity allows unjustified applications, endless adjournments and unmeritorious appeals to proliferate. It is routine for pleadings and paper books to grow into small mountains. So too with judgments, whose length may often be inverse to their learning. In all this, eventually, it is the dispensation of justice that suffers.
Meanwhile, the great hope of technology remains hostage to slow and uneven adoption, erratic electricity, uneven bandwidth and user resistance.
Solutions require state and central governments to come together, to at least attempt to find answers. A few are mentioned here.
Excessive government litigation presently accounts for roughly 50 per cent of the court load. Attempts to trim and rationalise this have been going on for a while. In the absence of comprehensive publicly available data, or cost-benefit analysis, it is hard to know whether they have led to any significant downsizing of the sprawling government docket or what incentives and disincentives would rationalise it.
Every new legislation adds its own slice of litigation. New bills rarely ever assess the additional load that will fall on the courts. The practice of assessing possible financial and time implications and putting this out to the public at the pre-legislative stage would, perhaps, lead to better-drafted laws and early plans being laid for better outcomes. Cleaning out outdated laws and procedures also helps to reduce cases.
Judges are trained to be adjudicators, not administrators. A permanent administrative secretariat headed by a qualified court manager within each court, on whom the senior judge can rely, has proved a winner in many jurisdictions abroad where court management is a specialised career option. Long-term court managers who can free the bench of many tedious tasks and a design for maximum efficiency are solutions worth universalising.
On the quality side, there is a strong case to be made for higher standards being set at the entry level before anyone can grace a bench, whether high or low, or before being allowed to practise before a court. The growing number of appeals and admonitions meted out for ignoring procedure, not knowing the law and dressing up opinion as legal rationale says much more about the fault lines embedded in the system than about the individuals who have been allowed to run it.
Spending more money on justice delivery is, of course, a no-brainer but resource-strapped governments do not prioritise ramping up efficiencies in justice delivery. The India Justice Report estimates that the overall per capita spending on judiciary stands at less than Rs 150. It remains to be evaluated whether this subsistence-level budgeting is penny-wise or pound-foolish.
The eye-watering five million-plus cases pending have prompted all sorts of experiments and sudden ad hoc efforts: Compulsory pre-trial mediation, Lok Adalats, specialist courts, the winnowing out of petty cases, ironing out burdensome procedural bottlenecks as the apex court has done recently when it directed the electronic communication of bail orders directly to prisons; prioritising old cases and cases where delay will bring about loss of liberty and irreparable harm to one or other party, and ever more tribunals. Yet, too often, saddled with the same structural shortfalls, starved of money and manpower, heavy workloads and deficient domain knowledge, specialised efforts like consumer and POCSO courts limp along, while their own arrears end up in the same dire straits.
The rising tide of litigation is often cited as one more reason for inescapable delay. In a rule-of-law country, it is everyone’s right to have their day in court. Across the world, as incomes and ownership rise and commerce and industry grow, recourse to formal systems of adjudication increases and must be welcomed because it signals trust in a robust system of conflict resolution. This is inevitable, foreseeable and with prudent planning — not finger-pointing — could be manageable.
The writer is editor-in-chief, India Justice Report
