Shailesh Gandhi | June 27, 2013
The Indian judicial system has managed to safeguard and generally expand the fundamental rights of citizens. It can rightfully claim a lot of credit in ensuring that a functional democracy exists in India, despite its diversity and huge challenges. However, the judiciary’s increasing backlogs are creating a huge problem, which are threatening the rule of law.
While this ensures that an accused gets enough opportunities to prove his innocence in a very fair manner, the process has become so languorous, that a powerful or rich criminal can almost not be punished, denying any justice to the victim. On the other hand, if a poor person is framed, he suffers in prison as an undertrial. India ranks amongst the 10 worst countries in terms of having the highest percentage (70%) of undertrials among the prisoners. Yet, time-bound justice is not seriously talked about as an agenda for the nation. Perhaps, it is not believed to be achievable. We have been hearing that the Indian judiciary would need centuries to clear its backlog. Justice VV Rao of the AP high court said it would take 320 years to clear the backlog of cases in India. Since everyone talks of the huge and insurmountable backlog, it has been accepted that unless the number of judges is increased twofold or threefold, the judicial system cannot cope.
I decided to take a look at the issue by doing some number crunching. The supreme court used to publish a quarterly, Court News, until June 2012, which among other things published various statistics related to courts. The old issues are available http://supremecourtofindia.nic.in/courtnews.htm
I assume we can rely on the data provided as being reliable. I must also disclose my core belief, that unless the judicial system delivers in reasonable time, it is not delivering meaningful justice. I believe this should be a non-negotiable.
Using the data from four issues of Court News, from July 2011 to June 2012, I noted the numbers of new cases instituted in each quarter, disposal and the pending cases in the supreme court, high courts and the district and subordinate courts. Evaluating the disposals of cases and the pending cases reported, it appears that the statement about the backlog being equal to centuries was a hyperbole. I took the average number of cases disposed in each quarter and calculated one-third as the disposal rate per month. Dividing the pendency by this figure gives the number of months’ pendency. I have calculated for each quarter, and in no case did the backlog appear to be over 34 months. The average pendency for the period between July 2011 and June 2012 comes to 10 months for the supreme court, 29 months for the high courts and 18 months for the lower courts.
Many friends in the legal fraternity are aghast when one talks about measuring justice delivery in numbers. They argue that there are vast differences in 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. It is reasonable to compare such data which is meaningful. The data for this analysis is given in the accompanying chart.
The data appears to indicate that if the principle of ‘first in first out’ (FIFO) could be strictly followed, that would be the time a case would take to go through the courts. I agree that this would not be feasible, 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 no case could be allowed to languish for more than double the average time taken for disposals. The listing of cases is being done by the judges, and no human being 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. This would result in removing much of the arbitrariness, and also reduce the power of some lawyers to hasten or delay cases as per their will. If this was done, the maximum time at the three levels of courts would be 20 months, 58 months and 36 months, respectively.
The vacancies are 15% for the supreme court, 30% for the high courts and over 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. After filling the vacancies, if the courts stick to their avowed judgments to allow adjournments rarely, it should certainly be possible to increase the disposals by at least 20%. If courts basically follow the principle of dealing with cases primarily on a FIFO basis, the judiciary could deliver in a reasonable time.
My suggestions based on the above would be: Courts must accept the discipline that over 95% of the cases will be settled in less than double the average pendency. Then, reasonable equity could be provided to citizens, and Article 14 actualised in the courts.
The listing of cases should be done by a computer program, with judges having the discretion to override it in only 5% cases.
Vacancies in the sanctioned strength of judges should be less than 5%. Adjournments should be rare.
After this, a calculation could be done to see the number of judges required to bring the average pendency in all courts to less than one year.
Disposal per judge and court along with data of pending cases giving details of the periods since institution should be displayed by the courts. Wide variations in disposing cases violate Article 14 of the constitution and better case management can stop this.
The perception about decades being required to clear the backlogs is a mirage caused because of arbitrary case management. Case listing should be computerised, to follow a predetermined logic, allowing judges to override the program only to the extent of 5% deviation. This would reduce arbitrariness, and ensure that courts adhere to the constitutional promise of Article 14 in their working. Then we would have a functional judicial system, and a better rule of law would prevail.
(Gandhi is an activist and a former information commissioner with the central information commission.)
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