This section of the Pragati Manifesto is about how we can fix our judicial system. Read the other pieces here.
Indians know from experience how badly the legal system is broken. Delays in resolving cases are legendary and have reached a point where they prevent citizens from even exploring a legal solution to a problem. The judicial system fares badly when compared to access to other public institutions, and also when compared to judicial systems in other countries. According to the World Bank’s Ease of Doing Business report, India ranks 168 out of 190 countries on ‘enforcement of contracts.’ Using data from Mumbai, it finds that it takes 1445 days to resolve a dispute from the date of filing. This is also a reasonable representative of India. To avoid disputes down the line, fewer trades take place across the board. The problem with poor enforcement of contracts is that it deters investment, and entrepreneurship, and consequently economic growth and employment.
For criminal cases, if a case ever makes it to court, the delays are much longer. It is possible to die in jail before getting one’s day in court or die waiting to see the perpetrators get punished in court. This endless trial process is a significant deterrent to report crimes. Many victims are discouraged by the idea of putting their life on hold for five-to-ten years at the minimum trying to get justice. Witnesses often change their testimony because it is difficult for the Indian state to keep witnesses safe over long periods as the perpetrators undergo trials. This is particularly true of violent crimes against women, children, and minorities, who are explicitly and implicitly discouraged from reporting crimes.
The problem is most severe at the level of the lowest courts. There are about 20 million pending cases in the trial courts, to be disposed by about 15,000-16,000 trial court judges. About 30% of the cases take between 2-5 years and another 30% of the cases take over five years. Additionally, there is a backlog, (i.e. the difference between the cases initiated in a given year and the number of cases disposed in a given year) that has only grown year on year. Justice delayed is justice denied, and the most urgent and important reform area is to target judicial efficiency and eliminate judicial delay.
This list of suggested reforms is not exhaustive, but a place to start the reform process. There are four areas within the justice system that need immediate reforms. Most of these reforms pertain to the lower judiciary, which is usually the first point of contact between the citizen and the judicial system, and also the starting point of the glut in the judicial system.
One: Increase Judicial Capacity and Recruitment
India needs a number of reforms to at least double but ideally triple the number of judges, fill all the current vacancies, and have a streamlined judicial recruitment process. It is the most essential step towards addressing the severe lack of judicial capacity in India.
- First, we need to create more positions for judges, especially in the lower levels of the judiciary, as caseloads have exploded over the years. India has only 12-15 judges per million people compared to the US’s 110 per million. The immediate goal is to reach the Law Commission’s 50-judges-per-million recommendation. A good start is to double the number of judges across the board in the lower judiciary.
- A second related issue is that the recruitment process is so dysfunctional that even the positions that have already been allotted and budgeted are vacant. Vacancy rates in the lower courts are about 25% and in High Courts about 40% Indian courts are, thus, only operating at only 75% of their already extremely deficient capacity. And therefore, all current vacancies should be filled without delay.
- The third, and related point, is the utter lack of transparency of the appointment process. Lower judiciary need a streamlined recruitment process that is handled by full-time administrators and not judges. i.e. our judiciary needs a dedicated HR manager.
Two: Improve Court Management and Infrastructure
The Indian judiciary needs to have a dedicated registrar, administrative, and management service, like Her Majesty’s Courts & Tribunals Service in the UK, to address administrative needs of the judicial system.
- The courts need a case-management system that streamlines the process of filing a case, getting a date for hearing, filling additional paperwork, rejoinders, responses, etc. Ideally this should be a computerized system minimizing human discretion. While these are procedural and administrative tasks, they are done by people with judicial expertise in court, and without any streamlined process. The Indian judicial system still operates largely the way the British set up the courts centuries ago. Other than the highest level, there has been virtually no updating of the physical and technological infrastructure of the courts. Even in higher courts, for instance, judges spend valuable time in court scheduling cases and dates and hearings.
- Courts need a dedicated court registry/administrative staff to help streamline the judicial process. This kind of streamlined process is used today for other government services like issuing passports. But courts, which have a much higher load and pendency than other public services, continue to operative without a sensible administrative infrastructure.
- For administration and management, India needs to create a judicial service, like the UK, to provide the support required for the smooth functioning of courts. In the UK, right from recruitment processes, physical infrastructure administration, and case load distribution systems, the service has a trained bureaucracy and IT processes to assist the judicial system. India needs a similar system, ideally at the state level, to understand and deliver the resource needs of the judicial system, staffed with administrators and helmed by retired judges.
Three: Increase the Physical Infrastructure of Courts
Indian courts need to increase in size physically to cope with the increase in the number of citizens and cases served.
The physical infrastructure of Indians courts has not changed much since colonial times. Courts need to expand, both in physical size and number of court rooms, but also need to expand to accommodate the increased staff required in the back office and registrar, as well as to physically accommodate the increasing number of lawyers and parties or the daily footfall in court. Simple things, like the number of restrooms, parking spaces, waiting areas, etc. have not increased to keep up with population or caseload.
Four: Reform Procedures for Case Management
In any justice system, there is to some extent a tradeoff between justice and efficiency. Justice requires that the court allows a lot of room for detailed hearings and gives adjournments in cases of distress, etc. while efficiency requires completing the cases in a timely fashion. In the Indian case, we are neither achieving justice nor efficiency. In fact, the lack of efficiency is denying justice. India is notorious for granting adjournments and allowing parties to exploit delays in the judicial system. This can be resolved by changing procedural rules to limit the number and the situations where adjournments are granted.
- The first step is to amend the evidence and court procedures and reduce the number of , and the situations where, the court allows delays, continuances, and adjournments.
- The second step is imposing penalties or sanctions on the party that delays and asks for continuances and adjournments.
- Third, penalties and sanctions on the parties that fail to file the requisite papers or evidence in a timely fashion.
- Further, the data or the record of each judge for disposal of cases should be made public, and ideally incorporated in decisions to elevate judges to a higher bench. These reforms must be enforced more strongly for civil proceedings than criminal proceedings.
- Another procedural change required is the “case management hearing”, similar to the procedure used in commercial disputes. This process lays down the timeline for completing the case. To ensure adherence, it requires a clear set of penalties and sanctions for the party that deviates from the given timeline.
The judiciary is an essential function of the state and it needs to be a priority. The budgets for the judicial system need to increase and there needs to be an increase in capacity. This along with changes in civil and criminal procedures, we well as filing and administrative processes, will go a long way toward streamlining cases and reducing the delay in the judiciary.
Read the rest of the Pragati Manifesto here.