Shailesh Gandhi | June 18, 2015
There is considerable talk of judicial accountability in the nation, but it does not address the key parameter of time-bound justice. Of three persons in prisons two are under trials, most of whom may not have committed any crime. Right to Speedy Justice which has been recognized by the Supreme Court as a fundamental right is violated daily in the courts. Justice delayed is injustice.
I decided to take a look at the issue by looking at the data with the objective of trying to estimate the number of judges required to achieve this. Data has been taken from the ‘Court News’ (http://supremecourtofindia.nic.in/courtnews.htm) on the Supreme Court website for twenty quarters from January 2009 to December 2013.
I noted the new cases Instituted in each quarter, disposal and the pending cases in the supreme court, high court and the district & subordinate courts. Using simple arithmetic it is possible to get the number of months’ pendency in each quarter by dividing the pendency with the number of cases disposed.
This shows that the average pendency should be 10, 31 and 18 months from the supreme court to the subordinate courts. Most anecdotal perceptions are that it takes much longer. The average vacancies in the three levels are 12% for the supreme court, 30% for the high courts and 20% for the lower courts. When citizens are suffering acutely because of the huge delays in the judicial system, there can be no justification for such high levels of sanctioned positions being vacant.
The dates of retirement of judges are known in advance and hence the selection process could start even six months in advance, so that there may be no vacancy. If all positions had been filled promptly, and these judges had disposed cases at the same rate as the existing ones, the average pendency for the three courts would have been less than 3 months for the lower courts and the supreme court. This would have been about 7 months in the high court.
This indicates that if the principle of ‘first in first out’ (FIFO) could be strictly followed, and no vacancies kept, this may be the time for a case to go through the courts. This would not be feasible completely, but there can be no justification for many cases taking more than double the average time in the courts. The courts should lay down a discipline that almost no case could be allowed to languish for more than double the average time taken for disposals.
Presently the listing of cases is being done by the judges, with partial resort to computers and no humanbeing can really do this exercise rationally given the mass of data. It would be sensible to devise a fair criterion and incorporate this in computer software, which would list the cases and also give the dates for adjournments based on a rational basis. This is essential if we are serious about Article 14 of our Constitution which guarantees equality before law.
Certain categories of cases may be given priority, based on a criterion, not the individual or the lawyer. As an example, it may be logical to have all bail applications decided in a week, but then the poorest would also get bail in a week, not only Salman Khan. Cases which must be taken up urgently would be decided by a pre-determined category. This would result in removing much of the arbitrariness, and also reduce the gross inequity based on money power.
If FIFO is accepted, all vacancies filled and the principle that 95% of all cases must be disposed within double the average time is accepted, the maximum time at the three courts would be 6 months, 14 months and 6 months. If the number of sanctioned posts for High Courts was increased by a small number, all these courts could deliver justice in less than 9 months. There may be a few exceptional cases which may take longer. Some people argue that there is a big difference in the nature of the cases. However, over a large number of courts and cases, the large variations due to different cases would even out and can be used to compare or find possible solutions. Besides the evaluation is based on 20 quarters over five years, and appears to show some consistency.
My suggestions based on the above are:
1.Courts must accept the discipline that over 95% of the cases will be settled in less than double the average pendency.
2.The listing of cases should be done by a computer program, with judges having the discretion to override it in only 5% cases for very urgent matters. Such a program should be developed with the inputs of judges and lawyers. It is necessary to understand that the present system is completely arbitrary and the principle of first in first out would be fairer than the current one. Besides in 5% cases the judicial override could still function.
If these are followed, most cases would be disposed in a court in less than a year and justice and equity delivered in the courts.