Our legal system is stuck in the 19th century. We need an upgrade.
What do we about the Indian judiciary?
It’s easy to put out the worrying numbers (as of date) because they are there in the public domain and well known:
- There are more than 4 crore cases pending at all levels in Indian courts.
- 37% of High Court vacancies are unfilled, as are 23% of subordinate judiciary vacancies.
- 78% of pending cases in the High Courts have been awaiting disposal for more than two years since filing; the figure is 53% for cases at the subordinate judiciary level.
- A shocking 23% of cases in the High Courts have been pending for more than ten years; the figure is 8.43% at the subordinate judiciary level.
Events over the last decade or so have also given reason for people to doubt the integrity of the judiciary:
- Two retired High Court judges are currently facing CBI prosecution for alleged corruption.
- Two High Court judges faced impeachment proceedings in Parliament but resigned before they were impeached.
- One High Court judge was jailed for six months for criminal contempt of court, one retired Supreme Court judge had to apologise after similar proceedings were begun against him.
- A High Court judge has been stripped of judicial work after being found guilty by an internal committee for clear misconduct.
- Two Orissa High Court judges are currently facing in-house proceedings for misconduct.
Since the four senior-most judges of the Supreme Court of India held their press conference on January 20, there has been a growing awareness of the crisis within the judiciary. The immediate trigger may have been the manner in which the Public Interest Litigation over Judge Loya’s suspicious death was being listed in the Supreme Court but the causes for dissatisfaction were much deeper. Something’s rotten in the state of the judiciary.
The judiciary, not just the Supreme Court, or the High Courts or the subordinate judiciary, didn’t end up where they are because of the events of the last six months, or the last year, or since 2014 or even the last decade. A number of things have gone into getting the judiciary to its present broken state, some of them dating back multiple decades, and some relatively recent. In the essay, I’ll try highlighting the major ones.
The issue of capacity is sometimes simplistically thought of as just the lack of enough judges. No doubt certain courts are presently suffering from a crippling lack of judges. However, the capacity problem will not be addressed by simply adding more and more judges. Certainly nowhere near the absurd figure of 70,000 proposed by one former CJI.
Given the workload, merely filling up the existing vacancies should suffice, but much larger gains in efficiency can be made by changes to procedure (see next section). Even then, simply sanctioning more posts of judges will do nothing as long as the appointment systems are not changed.
At the moment, High Court and Supreme Court judges are “recommended” (or selected) by the three or five senior-most judges of the Supreme Court. It is a process marked by a lack of transparency, fairness or any accountability. No criteria are declared (beyond the minimal constitutional qualifications), no reasons given for specific approvals or denials, and no remedy for any unfairness in the process. While it was set up to ensure independence of the judiciary from executive interference, the collegium system has failed to ensure a modicum of transparency and efficiency in the process. Though the present government has a hand in delaying appointments, vacancies in the High Courts have never fallen below 25% in the last decade. Though the position in the subordinate judiciary is slightly better, it is highly uneven across the country as selection processes are routinely challenged in court and fail to keep up with the vacancies.
Just as important as the “how” of appointment is the question of the “who” gets appointed. Diversity in the higher judiciary is a serious concern. It is less so in the subordinate judiciary since reservations for scheduled castes, scheduled tribes and women are prevalent. However, there is a glass ceiling (paywall) for members of the subordinate judiciary that prevents the High Courts from being as diverse as the subordinate judiciary. A small self-selecting clique essentially reproduces the lack of diversity in every appointment cycle. It’s safe to say that India’s higher judiciary is absolutely unrepresentative of the great diversity of India’s people.
When it comes to what happens within the court itself, the average Indian court would not be unfamiliar to a lawyer or litigant form the 19th or even 18th century. Save for the introduction of computers and electricity in some places, one would think the courts are stuck in a time warp. In the context of the civil procedure applicable to suits and civil disputes, it is almost literally true – the Code of Civil Procedure, 1908 has not been seriously reformed over the years, and continues to reflect the 19th century mindset when it comes to litigation. It does not see courts as public institutions whose time and energy should not be at the mercy of the litigant and her whims. Litigation moves at the pace the litigant wants it to, often to her advantage and the public’s disadvantage.
This approach has been discarded in the rest of the world. There’s an understanding now that litigation imposes serious costs beyond the obvious monetary impact. The underlying philosophy being adopted in common law jurisdictions around the world such as the United Kingdom and Singapore is to empower the judge to take control of the litigation and ensure its timely completion. Strict time limits are set and parties penalised for not following them. The effectiveness of this can be measured by the number of high-value litigations between Indian parties being agitated in Singapore and UK courts (usually following arbitration there).
One small effort has been made to rectify this with the Commercial Courts, Commercial Divisions of High Court and Commercial Appellate Divisions of High Court Act, 2015. Based on the Law Commission of India’s 253rd Report, the law amends significant parts of the Code of Civil Procedure in the context of high value commercial disputes, giving commercial courts more powers to dispose of such suits filed.
Whether and to what extent this will bring about the necessary changes remains to be seen.
In talking about the state of the judiciary, one cannot ignore the state of the legal profession and legal education. The immediate link one makes is that of lawyers being responsible for strikes and hartals which shut down courts for days on end, further delaying cases. They wouldn’t be wrong – the number of days lost to such strikes in the last five years (as the 266th Law Commission report points out) are staggering. While one would like the Bar Councils to crack down harder on such misconduct, given the form of self-regulation that applies to lawyers, one is not holding one’s breath.
But there’s a deeper set of causes for this beyond. One obvious one is the State’s failure to invest in quality legal education for the first four decades of the republic. While engineering got its IITs and RECs, the medical profession its AIIMS and medical universities, it wasn’t until the late 1980s that serious effort was put into setting up a boutique law university, the National Law School of India University. Even now, with the proliferation of National Law Universities across the country (set up by state governments) the total output of lawyers from them is still a small fraction of the overall number of law students graduating from the hundreds of law colleges which have mushroomed over the years.
Anyone with a law degree can technically practice the law, but that does not mean that they can make a living from it. It takes years for one to establish oneself in the profession, and in the absence of family support (either from this in the profession or outside it), almost impossible. The legal profession in India is also not organised with only a small percentage of lawyers working in law firms which can provide a steady stream of income. The vast majority work in solo or tiny practices out of holes in the wall in the local court. This leads to a glaring disparity which appears across all levels of the judiciary in India – barely 7% handle about 50% of the cases. This means that a small elite of lawyers are overburdened with cases and the rest have to make do somehow.
There are many more areas to be addressed, and one could fill many books on what’s exactly wrong with the Indian judiciary and why. However, the time for minute examination has passed and it is time for action – litigants are voting with their feet and not approaching courts to resolve disputes.
Change starts at the top and it is time for the Supreme Court to accept the harsh realities – it cannot function as a relic of the 19th century with unwritten conventions and traditions in respect of important functions like appointment, listing of cases and constitution of benches. Rules must be framed, procedures established and accountability fixed in a transparent manner when it comes to running the judiciary. If the Supreme Court can accept that it needs to change, and change fundamentally, it is quite likely that the message will percolate downwards.
What will this change look like? Surprisingly, the Supreme Court has itself laid out the template for what this change will look like. In its judgement on the question of how certain lawyers are designated “Senior Advocates” by the High Courts and the Supreme Court, the court acknowledged the arbitrariness and lack of uniformity of the procedure in making such designations. It also acknowledged the absence of diversity and criteria in decision making for such designations. Being designated as a “senior”, far from simply indicating the court’s recognition of a lawyer’s ability, is usually the basis for a more influential role in the courts. That the court has declared such a public mea culpa in this matter, and moved in the right direction to rectify it, gives reason for hope.
But that is just for the Supreme Court. Our civil and criminal procedural laws are crying out for large scale reform – the kind that replaces the 19th century approach with a more 21st century understanding of the judicial process. Perhaps a start has been made with the Commercial Courts Act amending parts of the Code of Civil Procedure, 1908. However, the trend seems to be the other way round when it comes to criminal procedure – hard won rights of fair trial are being slowly undermined by governments in a bid to secure quick prosecution.
Even this however pales against the much harder issue of changing the legal profession. The change cannot stop with wresting legal education from the hands of the Bar Council of India – it needs a root-and-branch overhaul of the system of legal education itself. A law degree should ensure that the average lawyer has the competence to make an honest living from the profession. The present fragmented state of the Indian legal profession must change into a more structured and organized one if the legal system has to keep up with the changes to the wider Indian economy. Some of this will happen organically, but some nudges are perhaps needed.
Given their conservative nature, one cannot expect quick changes when it comes to legal institutions. Nor can the changes can be imposed from outside – the judiciary’s independence is too valuable to sacrificed for efficiency. Part of the change will have to be driven by the scrutiny of citizens and the actions of litigants. Much of it will depend on lawyers and the wider legal community understanding that the status quo simply cannot continue. The judiciary must drag itself into the 21st century.
Also check out: Episode 62 of The Seen and the Unseen in which Alok Prasanna Kumar talks about judicial reforms in much greater detail with Amit Varma.