The judiciary needs to greatly improve its performance in terms of the way judges are selected and trained, and the way courts and litigation are managed.
Sarwar Lateef | October 4, 2017
As argued in the previous article, it is patently clear why India should not postpone efforts to reform the judiciary. The problems facing the judiciary are well understood. Much of what needs to be done has been analysed to death in the media, learned journals and books, and is reflected in government policy initiatives. The UPA government issued a vision statement and action plan in 2009 and launched a National Mission for Justice Delivery and Legal Reforms which is still ongoing. Both the UPA and NDA governments attempted, unsuccessfully, to reform the way judges are selected in the higher courts and to regulate judicial standards and accountability. The BJP’s 2014 manifesto outlines several legal reforms that address the key issues facing the judiciary. Some reforms have been initiated and others are promised.
The judiciary needs to greatly improve its performance in terms of the way judges are selected and trained, and the way courts and litigation are managed. Central and state governments also need to address factors that are in their control which contribute to high pendency levels and the inefficiency of the courts. Equally important is the willingness of key stakeholders such as the legal profession and bar associations to be willing partners in a reform process.
None of this is going to be easy. The judiciary is overworked and reportedly set in its ways. The political class is ambivalent at best about a strong and effective judiciary as it greatly cramps its style. And the legal profession has much to lose from reforms that change the way it currently does its business. Yet, judicial reforms are essential to the country’s sustained growth and balanced development.
Managing the judiciary
Under the Indian constitution, the judiciary is largely independent of the other branches of government.1 Its pay and pension are charged to the Consolidated Fund. Salaries of judges cannot be varied without a constitutional amendment. The judiciary also “wrested control” of the appointment process from the government following the Three Judges Cases in the 1990s, although the final say still rests with the president. It is therefore solely responsible for managing the court system, and for the quality and effectiveness of the judicial process. Yet, this independence has been accompanied by a lack of accountability and transparency and the failure to modernise the management of the court system.
The problems start with the way judges are appointed. At the supreme court, the collegium that selects judges comprises the chief justice and four senior most judges. At the high courts, similar collegiums identify judges predominantly from the local bar, but also from the subordinate court judiciary, and send their recommendations to a collegium comprising the chief justice of India, two senior most judges of the supreme court, and the chief justice of the concerned high court. Judging by the large number of vacancies, particularly in the high courts, the collegium process is clearly not very effective in managing the turnover of judges and filling vacancies promptly as they arise. While part of the reason may be the inability to attract high quality lawyers who earn in a day what judges are paid for a month, it also reflects the lack of a proper manpower planning process that should underpin such an exercise.
The process by which decisions are taken in the supreme court collegium was described by justice Ruma Pal, a retired supreme court judge, as one of the “best kept secrets in this country”2. This assessment was later confirmed by a member of the current collegium, justice Jasti Chelameswar, who provided the sole dissenting opinion from the supreme court’s judgment striking down the National Judicial Appointments Commission Act, and who subsequently ceased to attend meetings of the collegium. Arguing that transparency was vital to constitutional governance, justice Chelameswar said that “proceedings of the collegium were absolutely opaque and inaccessible both to public and history, barring occasional leaks… There is no accountability in this regard. The records are absolutely beyond the reach of any person, including the judges of this court who are not lucky enough to become the chief justice of India.”3 Being “lucky enough” refers to the fact that the younger you are when you are appointed, the more likely you will become chief justice since under the current convention only the senior most judge of the supreme or high court is appointed as chief justice. This typically results in a very short term for each chief justice, about one year or so, and often less. This is certainly not enough time to reform a system or to provide the kind of leadership needed to bring about change.
Justice Chelameswar, in his dissenting judgment, was rightly concerned that the supreme court had gone too far in totally excluding the executive branch from the process of appointing judges. The court did ask the government to come up with a memorandum of procedure for appointment of judges, but while drafts exist of such a memorandum, the process remains frozen. Many in the legal fraternity, both judges and lawyers, are understandably not yet prepared to trust the political class to not abuse the process of appointing judges and are therefore reconciled to the collegium system. But they also want to see it becoming more transparent and professional.
One result of a flawed selection process is increasing evidence of appointments that should never have been made in the first place (See Part I of this article4 ). Judicial corruption has become a major issue, as also erratic and undignified behaviour. The supreme court found itself earlier this year having to issue for the first time in its history an arrest warrant against a sitting judge of the Calcutta high court.
Far more important though is that a rigorous, transparent, and competitive process for appointment of judges would result in a much more effective and efficient judiciary. Over a decade ago, the UK ended the executive’s control over judicial appointments by establishing a Judicial Appointments Commission, which oversees a highly competitive recruitment process for judges (See Box A). Johanna Harrington, a professor of Law at the University of Alberta, argues, that “in countries of the Westminster tradition, judges do not rely on any democratic mandate. Instead, their legitimacy rests on their independent status and appointment on merit. The role of parliament, and of parliamentarians, therefore lies with the oversight of the judicial appointments process as a whole, and not the selection of a particular individual.”5
The combination of a selection process that does not guarantee excellence, the limited time a chief justice is given to institute reforms, and the high pendency facing the judicial system results in the neglect of the management issues facing the judiciary. Both supreme court and high court judges sit on various committees to manage diverse court functions. As autonomous entities, the supreme court and high courts also have registries that manage the court calendar, administer staff services, run personnel, financial, and records administrations, support judges through secretarial and other services, undertake court reporting, and liaise with the bar, the press and government agencies. These diverse responsibilities, combined with the heavy load of case management leaves little or no time for the broader issues of leadership and change management, performance measurement, long-term manpower planning, and strategic planning. Nor is there any effort to systematically evaluate the performance of judges of the upper judiciary in terms of how effectively they manage their case load and the quality of their judgments. There is talk of appointing court managers to help the judiciary better manage these various responsibilities.
The issues are even more complex at the high courts which are responsible for appointing, managing and overseeing judges at the 16,000-odd subordinate courts. Each state has its own judicial services selected through competitive examinations. High courts not only set and administer these examinations but also appoint, transfer and manage the judges of the subordinate courts and are responsible for managing the court buildings, IT and other infrastructure. This is a complex and time consuming process. The staff working for the high courts are required to keep records of the performance of all judges and prepare annual confidential reports (ACRs) for each judge. The high courts vary in the effectiveness with which they perform these functions. The ACRs are often not completed on time, and lack transparency. The large number of vacancies in the subordinate and high courts reflects in part the difficulty they face in finding qualified people who are prepared to work on the salaries judges are paid. But it also reflects the fact that highly-overworked judges are unable to carve out sufficient time and resources for this complex process.
Improving court management
The supreme court announced a new initiative in 2012 to establish a National Court Management System. This comprises inter alia, establishing a framework for court excellence, measuring performance through monitoring and enhancing performance parameters, strengthening case management, improving judicial statistics and creating a computerised national database, developing a Court Development Planning System and a Human Resource Development strategy for the selection and training of judges.
That prime minister Narendra Modi was invited to launch this initiative formally only earlier this year suggests that progress has been lethargic at best. There has been improvement in the computerisation of data, and the supreme court has switched to e-filing systems and the objective is to introduce e-filing and have a consistent computerised case management system across the entire court system. The use of performance indicators, particularly to evaluate the performance of courts across the country as well as individual judges, would greatly help increase transparency and improve incentives for change.
Computerisation by itself is unlikely to enhance the pace at which cases proceed through the courts because of the way cases are typically conducted in India. There is huge uncertainty both about the outcome of the case as well as how long it will take to reach a settlement. The incentives are skewed in favour of frivolous litigants or those with deep pockets. Litigants also seek out lawyers who are known to get results and who judges are seen to favour or treat with respect. Since these lawyers are very busy, they tend to ask for adjournments to suit their work calendar. Judges are also not certain that they will see a case to its end since they may be transferred or cases may be reassigned periodically, and so have less of an incentive to invest time and energy getting on top of the issues raised by the case. The contrast with international best practice is marked (see Box B).
There is now increasing interest in emulating the practice in other common law countries of the judge holding an early case conference in complex cases where the judge decides on the key issues to be litigated, suggests alternative dispute resolution solutions (arbitration, mediation, etc.) for some parts of the case or the case itself, and sets a timetable for key stages of the case. This is reflected in the new Commercial Courts Act of 2015, which authorises state governments to establish commercial courts at district level. The Act amended the Civil Code Procedure to require case management hearings, set a six-month time limit for arguments to be closed, and require that judgments are pronounced within 90 days of the close of arguments. Commercial courts have started functioning in Mumbai and New Delhi, and the jury is out on how well they will function.
Reforms in case management will require shifting the incentives facing judges, lawyers and litigants. In their brilliantly argued article, Sudhir Krishnaswamy et. al.7 , demonstrate how incentives are currently severely distorted and that unless reforms clearly focus on addressing and shifting these incentives in favour of improved processes, it is unlikely that we will see an improvement in the rate of pendency or access to speedy justice. Much of the reforms in case management in the advanced Commonwealth Countries have focused on shifting incentives for key players.
How central and state governments can help
The judiciary will need to reform itself. But its capacity to do so will depend heavily on whether the central and state governments choose to facilitate these reforms or impede them. They have a key role to play in at least three areas.
First, India invests precious little in its judiciary. Modern court systems will not only require more judges, better paid judges and better court infrastructure, but a huge investment in training both at the beginning of a judge’s career, and regular mid-career training. They will also require highly skilled court managers and management systems including large investments in information technology. Much of the problem lies at state level where even the most advanced states spend far too little of their net domestic product on the judiciary (Table 1). Expenditures on the judiciary are not seen as a development priority. There are usually no plan allocations for the judiciary, and the budget comes out of recurrent expenditures, of which typically 70% goes to salaries and wages. Most of the advanced states spend a tiny fraction of the state net domestic product on the judiciary and rarely much more than 1% of their total budget expenditures. Unless this mindset is reversed, it is going to be difficult to meet the challenge of building a judiciary for the 21st century.
Second, the government is the largest litigant. There are no records either from the data managed by the judiciary or the ministry of law and justice on how many cases the government is involved in. The figure most often cited in the press is that 46% of all pending cases – an astronomical figure, and widely considered an underestimate – involve the government as a litigant. Former attorney general Goolam Vahanvati was quoted in 2011 as saying that “for decades courts across the country witness appeals on frivolous grounds, resulting in wastage of public money and consuming valuable time of the courts. This happens because officers involved in these frivolous cases are not personally responsible and don’t pay from their pockets.”8 It is further suggested that government officials have an incestuous relation with greedy lawyers, and free ride on expenses paid by the government for litigation and travel to various courts in the country. Earlier this year, union law minister Ravi Shankar Prasad wrote to his cabinet colleagues and chief ministers of states urging them to ensure that “cases are filed after taking a careful and considered view” and to “take quick steps to either withdraw or dispose of them speedily.”9 Many such cases involve one department of the government suing another. The law ministry has now set up a database to collect data on government litigation from all departments and has been promising for several years to develop a National Litigation Policy.
Third, support from the bar will be critical to successful implementation of any judicial reforms. Yet the state bar councils, and hence, the Bar Council of India (which comprises elected representatives from state bar councils) have reportedly become highly politicised, and their capacity to regulate the profession and, equally important, to regulate legal education has declined sharply. The councils appear to have difficulty reconciling their role in setting down and enforcing standards of professional conduct and etiquette for its members and its function of safeguarding “the rights, privileges and interests of advocates”. Equally, they have reportedly done a poor job of regulating legal education, resulting in the proliferation of many low-quality universities. The attorney general and the solicitor general of India (for the Bar Council of India) apparently rarely attend council meetings or take an interest in pushing these councils towards better self-regulation. The profession is now huge, with some 1.3 million lawyers, and it has demonstrated its ability through the state bar councils, and more often through national and local state bar associations to obstruct judicial reforms that are perceived to adversely affect current legal practices. The government needs to engage the bar council in a dialogue to support a strong judicial reform effort and strengthen its self-regulation as also its regulation of legal education. This must be a prelude to legislative reform to ensure that bar councils at national and state level take their regulatory role seriously and are held accountable for their overall performance.
Judicial reforms will only happen if the prime minister, the chief justice of India, and key state chief ministers come together to make it happen. Otherwise, a key pillar in India’s transition to the 21st century will become – if it isn’t already – an obstacle to such a transition.
Lateef specialises in issues of governance and development. He is grateful to Arunima Nair for research support for this article.
(The article appears in the October 1, 2017 issue)
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