Two path-breaking judgments by the Supreme Court on privacy and triple talaq were a reminder of how much we have begun to rely on the judiciary to make sense of a conflicted world. Seventy years after Independence, India’s judiciary has many accomplishments to its credit. A large judicial infrastructure has been created, with a powerful Supreme Court, 24 high courts with some 600 judges overseeing a regional structure of some 16,000 subordinate judges. As witnessed last month, India’s judiciary is substantially independent of the executive and legislative branches. Pratap Bhanu Mehta1  lists among the Supreme Court’s achievements its aggressive use of powers under the constitution to protect citizen’s basic freedoms, its support to the Election Commission in its efforts to protect the “integrity of the electoral process”, the protection it has offered for the federal character of the constitution by restraining the government’s use of the president’s rule option, its extension of  the concept of equality to the social and economic rights listed in the constitution, and the innovation of public interest litigation that has empowered civil society to subject government policies and programmes to judicial scrutiny.

While the judiciary’s entry into the area of economic and social rights has opened it to the charge of judicial activism, India’s courts enjoy a degree of legitimacy and authority that is not shared by other branches of government. The judiciary scores relatively well in citizens’ surveys of the trust they repose in various public institutions. Some 20 million fresh cases are filed each year in the three levels of India’s courts. While this may suggest that we are an overly litigious society, in reality per capita litigation rates are low in India, as in other relatively poor countries. Nevertheless, the large number of cases reveals the faith Indian citizens appear to repose in our courts to settle disputes and to right wrongs done to them.

However, for most litigants the judiciary largely betrays this faith. While it has stood up for our civil rights and emerged as an institution largely independent of political influence, for the vast majority of litigants, its record in providing them civil and criminal justice has been far from stellar. In this first, of two articles, I will focus on the key symptoms of the crisis gripping India’s judiciary. The second article will examine the principal causes of the disease and the areas where reform is critical.

It is important first to note that the judiciary is critical to sustaining India’s development momentum. India’s economic transformation in the last quarter of a century has been accompanied by the emergence of a large and sophisticated middle class and an electorate that is increasingly demanding better governance. Better governance and well-functioning institutions are not just a necessity for sustaining economic growth, but for the average citizen they constitute an important development goal that enriches the quality of their life.

Richard Posner, the well-known American jurist, argues that the “vigour of markets depends on establishment of an environment in which legal rights, especially property rights are enforced and protected”2. The judiciary is the principal enforcer of these rights. Posner’s views reflect a large body of economic literature that establishes strong correlations between the rule of law, property rights and economic development. While these studies show that these factors are highly correlated with economic development, it is not clear whether development is a result of or a reason for improvements in the rule of law or in the judiciary. Part of the problem lies in viewing the judiciary as a means to an end. A well-functioning judiciary enforces the law, and ensures equality before the law. As such it improves the quality of life for citizens and for all civilised societies. This must be as much a goal of development as it is a means to development.

Yet, India fares relatively poorly in international surveys of the rule of law (Table 1). It ranks in the bottom half of the World Justice Project’s Rule of Law index for 20163, standing 66th out of 113 countries, and 6th among 28 lower-middle income countries. This is despite the recognition afforded to India’s performance because of the constraints that are imposed (in part by the courts) on government power for which India is ranked 35th in the world, and 3rd among 28 lower middle income countries, and for its open government for which it is ranked 28th and first among its income group. Its poor ratings reflect largely the low scores it receives for ‘Order and Security’, where it ranks 104th out of 113 countries, and civil and criminal justice, where its global ranking is 93rd and 71st of 113 countries respectively. The low civil justice scores reflect the difficulties citizens face accessing justice, the unreasonable court delays, and poor enforcement of justice. The criminal justice system is rated poorly in part due to perceived lack of effectiveness of criminal courts, and low scores on impartiality and due process of law for the accused. As the indicators in Table 1 show, other large developing countries (the BRICS plus Indonesia) don’t do much better, except for South Africa. But on civil justice, India ranks the worst among the BRICS and also scores less than Indonesia.

While the Rule of Law indices focus on citizens, the World Bank’s Ease of Doing Business index measures one key indicator for private investment: the ease of enforcing contracts. India’s ranking in 2017, while an improvement, is still 172nd out of 190 countries. The average time it takes to enforce contracts is 1,420 days, and the cost of enforcing a contract represents a high 40% of the value of the claim.

These ratings reflect the reality on the ground. Three key symptoms of the crisis facing the Indian judiciary are (i) huge delays in the delivery of justice; (ii) the declining quality of the justice rendered both in terms of the quality of judgments and increasing concern about corruption in the judiciary, particularly at the lower levels; and (iii) the reluctance of the political class to adequately invest in the judiciary.

Massive pendency

At the beginning of 2015, India’s courts had some 31 million cases pending. The bulk of pending cases are in the subordinate courts (Table 2). The bulk of cases in the lower courts relate to criminal matters, with some 37% of cases involving petty crimes (traffic and police challans) and a further 6% relating to Section 138 Negotiable Instruments Act (bounced cheques). Civil cases tend to end up in appeals to the high court, and increasingly to the Supreme Court. As Nick Robinson argues, “Today a broad distrust of the subordinate judiciary both by litigants and judges of the upper judiciary has led litigants to appeal from or attempt to bypass the subordinate judiciary in large numbers”4.

The build-up of pending cases in the upper judiciary – some 4 million in the high courts and 63,000 in the Supreme Court – has several consequences. First, there is a gross overload of cases per judge. Despite rather high disposal rates per judge (over 2,000 in the upper judiciary) pendency per judge is a high 6,480 in the high courts (reflecting both the failure to fill the large number of vacancies in the high courts and the large number of fresh cases filed each year) and 2,280 in the Supreme Court (reflecting the large increase in fresh cases filed in the court). 

Second, given this large backlog and the massive inflow of fresh cases, which will only grow faster as the economy grows, it now takes an average of 3.5 years to dispose of pending and incoming cases in the subordinate courts, some 5.2 years in the high courts and 2.7 years in the Supreme Court.  In other words, it takes some 11-12 years for a case to climb up the judicial ladder from the subordinate courts to the Supreme Court. These are averages and so for a very large number of litigants, it takes far longer.

Daksh, a civil society organisation focussing on governance, has been attempting to “decode” delay in India’s courts. Its recent study5 documents the state of case management. In Calcutta high court, for instance, each day a judge has 148 hearings for an average of 2.1 minutes per hearing! The average number of days between hearings in that court is 16. Delhi high court on the other hand has a more leisurely 32 hearings a day, averaging 9.2 minutes a hearing, but makes up for this by making litigants wait an average of 80 days before the next hearing.

The cost to litigants of these massive delays and the impact on the quality of the judiciary’s work of this massive overload is incalculable. The system benefits the rich and those who can afford to wait it out. It skews incentives in favour of those who grab land and file frivolous law suits. It forces honest companies to protect themselves in contractual relations by relying on international arbitration agreements in other countries to avoid having to pursue a claim in Indian courts.

The criminal justice system also imposes a huge cost on under-trial prisoners. India has one of the lowest prison populations in the world in relation to its population. However, of some 420,000 prisoners in 2015, two-thirds were under-trials, reflecting the length of time trials take in India.  As Sudhir Krishnaswamy, et al, point out “Indian prisoners, especially under-trials, generally possess little or no education and are from some of Indian society’s most marginalised groups. These are people whose capacity to negotiate the legal process or access legal aid to vindicate their rights is severely compromised”.6

Declining quality

The quality of the judiciary is increasingly coming under question. The subordinate judiciary is recruited through state level examinations, and administered by over-worked high courts. The upper judiciary is recruited through a collegium process whose quality, effectiveness and transparency have been increasingly challenged. The Supreme Court has resisted efforts by successive governments to reform the collegium system, and the current negotiations between the NDA government and the Supreme Court on this issue have so far failed to produce results. Perception-based data from surveys carried out by Transparency International’s India chapter also suggest that corruption is a significant issue at the lower levels7.

The upper judiciary is also proving vulnerable. Fali Nariman, the eminent lawyer, quotes the distinguished former chief justice of India, VK Krishna Iyer: “Fortunately, judges generally maintain a high standard of behaviour on and off the bench. Even so the number of delinquents is on the rise. Bribery, sexism, communalism, corruption, vanity and like vices are no longer uncommon. Also colossal ignorance, indolence and utter indifference to writing judgments (are) sometimes evident”.8

Underinvesting in the judiciary

India spends far too little on its judiciary. Official estimates for both revenue and capital expenditures on the judiciary reveal that in 2014-15, expenditures by all state governments and union territories totalled '12,925 crore. The centre in that year spent '134 crores on the Supreme Court. Together these sums amounted to less than 0.1% of GDP. This explains why India had only 12.8 serving judges per million population at the end of 2015. This compares with some 147 judges per million in China, 102 in the US and 56 in England and Wales.

The Supreme Court’s Centre for Research and Planning, in a recent report9, argues rightly that access to justice is a fundamental human right and that the judiciary should be viewed the way the police or medical services are viewed, as something that the average citizen should be able to access as a right and at minimal cost. Yet, India, it notes, has only one judge for every 157 sq km, as against a police officer of inspector rank for every 61 sq km. What it fails to add is that the police are equally challenged, having a very large number of vacancies and that this data relates to sanctioned strength as distinct from actual strength! 

Underfunding is reflected in the large number of vacancies at each level of the judiciary: of some 21,000 sanctioned posts in the subordinate courts, 23% are vacant. The high courts are the worst affected with a vacancy rate of some 42% out of 1,079 sanctioned posts. The Supreme Court has six vacancies of the 31 sanctioned posts. While the blame for these vacancies is shared between the executive and the judiciary (with the latter being slow to fill positions), the situation is complicated because of the severe shortage of infrastructure. While there has been a recent improvement in infrastructure provision, there remains a significant gap between the number of vacancies at the subordinate courts and the number of courtrooms and housing available for new appointees.

This underinvestment also extends to human resource management, particularly in attracting high quality talent to the judiciary and managing existing resources wisely. This also gets reflected in the failure to undertake proper manpower planning and the inability to fully utilise the special allocations made by successive finance commissions for various infrastructure and skills improvement programmes.

The amount the state spends on the judiciary pales into insignificance when compared to what litigants spend as a result of the failure to deliver timely justice. Daksh estimates that litigants spend close to 0.5% of India’s GDP simply attending court cases that they are involved in. This estimate excludes legal fees which climb exponentially as you go up the court hierarchy.

If we as a nation aspire to great power status, we can no longer afford to treat the judiciary as a stepchild. As a recent Supreme Court report argues, “The third branch – the Judiciary – ought not to be made ineffective in the constitutional scheme by depriving it of resources both financial and human”10. (To be continued)

Lateef specialises in issues of governance and development. He is grateful to Arunima Nair for research support for this article.