CJI Justice N. V. Ramana, speaking at an event organised by the Karnataka Bar Council, quoted former Chief Justice of the US Supreme Court Warren Burger, “The notion that ordinary people want black robed judges, well-dressed lawyers in fine courtrooms as settings to resolve their disputes is incorrect. People with problems, like people with pains, want relief and they want it as quickly and inexpensively as possible.” Most Indians do not get the relief they are seeking and usually the process becomes the punishment.
The pendency of cases overwhelms the judicial system, and powerful wrongdoers can delay or expedite their cases at will.
Presently, about 24% of cases are decided within a year and 46% after 3 years (source: NJDG). In many countries over 70% cases are disposed in less than a year and barely 1 to 2% take over three years. If we do not act decisively and quickly, this distortion will keep increasing. The rich, powerful and wrongdoers have a field day by getting their cases expedited or delayed as they wish. Increase in corruption and crime are a direct fall out of the sluggish judicial delivery system. The Implication of this is very unjust and hard on the poor and weak. About 65% to 70% of the people in the Indian prisons are undertrials, mostly poor citizens. This results in corruption and wrongdoing not getting punished and the ease of doing business suffering. Our purported justice system is actually Matsyanyaya.
This has often been ascribed to the fact that there are not adequate numbers of judges. The apex court in its judgments since 2002 has stated that 50 judges are required for one million population. The then CJI, T. S. Thakur, said in 2017 that he needed 70000 judges to deliver satisfactory justice. Since decades the backlog has been increasing. In most fields the quality of delivery for citizens has been slowly improving. Only in the judicial delivery system it has seen deterioration. We decided to try and figure out how many judges would be required to ensure that the pendency would reduce. We came across some studies which had been done by different researchers who had studied this issue with different perspectives. We decided to analyse data, available in the Supreme Court website
(https://main.sci.gov.in/publication), for the twelve-year period of 2006 to 2017. We assumed that the average ‘rate of disposal’ of cases could be taken as a guide to calculate the number of judges required. The ‘rate of disposal’ had been taken as a practical means for estimating the requirement of judges by the Law Commission in its 245th report. Many friends in the legal fraternity are horrified by this approach, since the judicial time taken per case varies greatly. It is also true that different states have different ways of counting cases. However, we have noticed in our analysis that the national figures for disposal per judge has showed that the variability in the standard deviation was only 6% in the case of the Subordinate Judiciary, 8% in the High Courts and 11% in the Supreme Court. This indicates the variability is predictable with a reasonable certainty when looking at the national average. The results are based on data on the Supreme Court website for a period of 12 years. Based on this, we are sharing one solution which would not require any significant change in the way the courts function. It assumes that the average number of judicial hours will remain the same for the cases.
1. Reducing pendency of cases by filling sanctioned judicial positions
Analysis shows that in the twelve-year period of 2006 to 2017, the average increase in pendency was less than 3% per year whereas the average vacancy in the sanctioned judicial positions was about 21%. Any schoolboy can figure out that if the sanctioned positions had been filled, the pendency would have gone down each year.
The nation does not need 70,000 judges (as claimed by the former CJI Thakur), nor does it need double the present number. It only needs to add about 20% more judges. This is in line with the sanctioned strength. This analysis has been endorsed by Justice B.N. Srikrishna, Justice R.C. Chavan and 100 IIT Alumni. I am presenting the summary of the analysis for the same period assuming an average vacancy of 5%:
The working shows a negative balance, and each year the backlog would reduce. It would also be able to deal with some increase in the new Institution of cases. We would be happy to share the detailed analysis. If infrastructure is inadequate it would need to be augmented by only about 20%. Alternately, about 5000 courts could function in two shifts as suggested by Justice N. V. Dabholkar. This is a simple solution and can be implemented very easily. This does not assume any change in the way judges and lawyers function. It assumes that the average number of judicial hours will remain the same as it is at present. It only assumes that the extra judges who fill the vacancies will also dispose matters at the same rate as those who are already in the system. While the sanctioned judicial positions are about 18 judges per million the actual working strength is only 14 judges per million population. We do not require 50 judges per million.
This process of selection of judges must be started twelve months before the anticipated retirement date of a judge and the Collegium recommendations must be sent to the government three months before the vacancy occurs. There should be a similar approach for subordinate judges, of ensuring that the selection process is finished in advance.
The responsibility of selecting judges is largely with the judiciary itself. The responsibility of appointments in the subordinate judiciary lies with state government and respective High Court. As far as the Supreme Court and High Courts are concerned they are suggested by the Supreme Court collegium.
The responsibility to ensure near zero vacancies should be taken up by the Chief Justices of the High Courts and CJI. Presently nobody takes ownership, and filling judicial vacancies is not considered a matter of priority or anyone’s responsibility.
2. Improve working by using technology
The E-Committee of the Supreme Court has been in existence since 2005. It has made three outstanding recommendations which are not being followed:
Computer algorithm to decide on case listing, case allocation and adjournments. We are suggesting that only a 5% override be given to judges. All rational reasons and limits could be put on adjournments; case listing would give main weightage to First-In-First-Out; and case allocation would take into account a logical criterion. This would be a big step to reduce arbitrariness and unfair advantage to the powerful.
E-filing in all courts. The Committee has made detailed SOPs on how petitions, affidavits, payment of fees can all be done electronically without lawyers or litigants having to travel to the courts or to use paper. This should be implemented in all seriousness and would also save about 3 lakh trees annually.
Virtual Hearings: Covid prompted the courts to adopt Virtual hearings. However, virtual hearings were held only in some cases and physical hearings were held in most. In pre-Covid years, increase in pendency of cases in all courts used to be about 4.7 lakh cases a year. In 2020 alone, it increased to a whopping 51 lakhs! Presently, it appears that unless hybrid virtual hearings are adopted, the backlog of cases will cross 5 crores by 2023. The dysfunctional justice system may get perpetually overwhelmed.
All courts must switch to hybrid virtual mode immediately and start disposing cases at their normal speed. Even after the Covid crisis goes, it will be beneficial to continue hybrid virtual courts. This would make access to justice easier for lawyers and litigants. This will reduce costs for litigants and also give a fair opportunity to young lawyers from small towns. The required hardware is available in all courts.
To summarise
Essential
1. Filling Judicial vacancies (increasing the number of judges by about 20%.)
If infrastructure is not available, about 5000 courts could run in two shifts as recommended by Justice Dabholkar.
2. Fixing of responsibility on Chief Justices for ensuring that vacancies in judicial positions is less than 5%.
Desirable
3. E-Filing of petitions, affidavits, payment of fees – SOPs have been prepared and all equipment is available in almost all courts.
4. Algorithm based computerised listing, roster, case allocation and adjournments – only 5% override to be given to judges.
5. Hybrid virtual hearings
These are based on various decisions of the Supreme Court and recommendations of the Supreme Court’s E- Committee’s. These would require no changes in laws. A conference of High Court Chief Justices with the CJI and the government could decide this. Alternately the Apex Court could give appropriate directions to enforce the fundamental right to speedy justice. Presently the promise in the preamble of our constitution of Justice, Liberty, equality and fraternity are being violated in our courts everyday.
The above recommendations can be implemented within two years and India’s judicial system can be one among top ten countries of the world. This would also dramatically improve our ‘ease of doing business’ ranking and make India a preferred nation for international investments apart from fulfilling the fundamental right to speedy justice of citizens. We can move from Matsyanyay to a justice system which could be among the top ten in the world.
Shailesh Gandhi is the former Central Information Commissioner. Arun Joshi
is a technical consultant.