India’s “pendency problem” has been a topic of discussion for a while now, but came to the forefront recently when the Chief Justice claimed that the country needs 70,000 judges to handle the burden.
As of 01.01.2016 India had a total of 31,035,237 cases pending at all levels of the three-tiered judiciary.
The vast majority of the cases, over 27 million, are pending in the lowest rung, that is, the trial courts.
Around 3.5 million are pending in the middle rung of the Indian judiciary, the High Courts. Both these levels suffer from high levels of vacancies – about 21.82 per cent of the 20,620 sanctioned posts of trial court judges and 41.26 per cent of the 1,018 sanctioned posts of High Court judges lie vacant.
When seen with the fact that there are a total of 31 million cases pending in the Indian judiciary system, there seems to be an easy correlation between vacancies and pendency, and seemingly the former leading to the latter.
That, however, is not the full or even the correct picture.
The 31 million cases pending in the Indian judicial system must be seen in the context of the fact that nearly 20 million cases are filed every year. Yet, in 2015 alone, approximately 20 million cases were disposed. Even at present strength, it is obvious that the Indian judiciary is able to ensure that the incoming load of cases does not add significantly to the pendency.
The obstacle rather is that the judicial system has been unable to make progress in ensuring that the existing pendency of cases is resolved quickly.
The true nature of the problem therefore lies elsewhere.
India is set to become the world’s most populous country in less than a decade, says the UN [Xinhua]The latest figures provided by the Department of justice in the Union Ministry of Law show that 68 per cent of cases in the High Court and 51.2 per cent of the cases in the trial courts have been pending for more than two years. There is also great variance in the scale of the problem. For instance, in the State of Bihar, 69.48 per cent of cases in the trial court have been pending for more than two years but in the State of Sikkim, only 12.24 per cent of such cases have been pending for more than two years.
Generally, the larger the state, the longer it seems to take to dispose of cases.
If one were to assess the requirement of judges on the basis of just reducing the long pending cases, one finds that the actual requirement of judges is far lower than what the Chief Justice of India estimates it to be. If the aim is to ensure that old, pending cases are disposed of over the course of the next three years and no case is disposed of later than two years, just filling up vacancies should suffice in most states.
Unlike most other countries where the political executive nominally appoints the judges, the selection of judges in India is actually made by judges higher up in the hierarchy.
Thus, trial court judges are appointed on the basis of a selection process conducted by the High Court in that State; High Court judges are appointed on the basis of a recommendation by the senior most judges of the Supreme Court and that High Court; and the Supreme Court judges themselves are appointed on the basis of the recommendation of the five senior-most judges of the Supreme Court.
The experience of the last decade suggests that this appointment process isn’t efficient enough to fill all the vacancies. Data shows that since 2007, at least 25% of seats of trial court judges and 33% of seats of High Court judges were vacant at any given point of time.
This, here, is the problem of lack of judicial capacity. No matter how many courtrooms the government builds or how many posts of judges it creates or how much it funds the judiciary, it is ultimately in the hands of the judiciary to make full use of them.
Here, perhaps, there is room for the judiciary to introspect on its own processes.
The problems with India’s judicial system is not just one of judge numbers. Ensuring that there are enough numbers of judges to deal with the problem of pendency is just the first step to solving the problem. What holds back India’s courts from achieving their full potential are a range of factors – quality of lawyers being produced en masse by barely regulated law schools, civil procedure rules that still date back to the first decade of the 20th century, poor quality of judges being appointed, and the lack of infrastructure.
All of these require medium to long-term solutions that will involve multiple stakeholders of the system getting together and “buying in” to the reforms.
In the meantime, quick fixes such as “fast-track courts” have been tried – with little success. While they have no doubt helped in improving the speed of disposal of the cases that have been given over to such courts, it has come at the cost of slow-downs in the rest of the system. A different approach is being attempted with the Commercial Division and Commercial Appellate Division of High Courts and Commercial Courts Act, 2016 which came into force earlier this year. This is aimed at focusing resources exclusively on high value, time intensive cases so that more routine cases are not delayed because of these. Time will tell if the effort succeeds but the new rules of procedure that apply to the Commercial Divisions and Commercial Courts are an attempt to update India’s procedural laws with the best practices in the world.
The Chief Justice’s comments and the eagerness of the Union Government to pass the Commercial Courts Act is an indication perhaps of the urgency being felt to undertake serious judicial reform.
Additional stakeholders such as the wider legal community and litigants who are most affected by inefficiencies in and changes to the legal system must also be involved in the process and taken on board. A country which looks to have a leadership role in the 21st century in the global arena, is ill served by a judiciary that harks back to the 19th century in its delays, procedures and mindset.
It’s time India put judicial reforms on the fast track.
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