Why does the Indian justice system have so many pending cases? Our courts are creaking, with a backlog of cases pending for years and decades. According to the National Judicial Data Grid, over 70,000 cases are pending in the Supreme Court, around 60 lakhs in the High Courts, and crores and crores in the lower courts. Behind these numbers is the pain of myriad litigants who wait endlessly for justice. Can anything be done about it?
Let’s consider just the higher judiciary, with its specific set of issues. One way of looking at the key issues is through the prism of demand and supply. High caseload and the number of hearings needed to tackle it are indicators of the demand for justice. The judicial time available to hear and dispose of the cases are indicators of the supply of justice.
Clearly there is excess demand in the system. Unlike in the economy, there is no price mechanism to balance demand and supply. The result is extreme shortages that can only be relieved by increasing supply or decreasing demand.
So what are the factors that affect demand and supply?
If one were look at the statements of the highest levels of the judiciary at public forums, it would appear that the most pressing concerns in the higher courts are (a) filling up of vacancies, (b) better infrastructure and (c) more funding.
Interestingly, what is common to all these issues is that firstly they are all supply side issues, and secondly the onus for doing something about them is with the government. Yes, filling up of vacancies with suitable candidates is a straightforward action that would directly increase the supply of time available for delivering justice. At the same time, there are also other less discussed supply side issues where the initiative iswith the judicial system. Some of these are accountability for outcomes, productivity of judicial time, streamlining of processes. A few examples illustrate.
For example, is it possible for the heads of institutions tosignal the importance of increasing supply within available constraints? Perhaps by motivating their colleagues on the bench to be accountable for disposals? My limited recent experience while heading a state level quasi-judicial tribunal was that just this step was able to increase the level of disposals significantly beyond the historical levels.
Further, is it possible to increase the supply of judicial time by shifting from the concept of vacations (where the institution closes down) to leave (where individuals get time off but the institution does not close down)? Hard working judges do need time off from the job, more than everyone else. But is it really necessary for the higher courts to regularly shut downfor long periods every year, artificially choking the supply of judicial time?
In our system, should judges spend precious time managing court administration? Can this time be freed up for dispensing justice? In many advanced countries like the US and UK, the administration of courts and case management is entrusted to separate professional agencies.
Also, considerable judicial time is needed to prepare judgments, which historicallyhave tended to be rather long-winded and complex. Can simplicity and brevity be the new normal, with complexity the exception?
Such examples are legion. All such steps that can potentially increase supply of justice within available resources are worth a look.
At the same time, demand side factors shouldn’t be ignored. Along with increasing supply, are therepossibilities of taking steps to reducethe demand for litigation and judicial time?
One major demand-creatingfactor is litigation by government. A significant chunk of pending cases in higher courts arises out of petitions/appeals by government agencies. The risk-averse nature of bureaucracy makes it difficult for a government department or agency to accept the finality of a court order that goes against the government. Some revenue departments like the Central Board of Direct Taxes (CBDT) and Central Board of Indirect Taxes & Customs (CBIC) have tried to curb unnecessary litigation by fixing minimum monetary limits for filing appeals before the Tribunals, High Courts and Supreme Court.Can similar initiatives be thought of in other departments of the central and state governments?
The judicial system itself can help reduce demands on its time. Can criteria for initiating suo moto cases or entertaining Public Interest Litigations (PILs) be stricter? The unfettered constitutional authority of the higher judiciary is unquestionable. However, overriding judicial attention to matters wherein no one is overtly seeking judicial intervention or to PILs by special interest groups does add to the already excess demand.
Yet another example is the practice of relatively easy adjournments. Matters routinely seem to require multiple hearings for disposal. Demand for judicial time needed to dispose of a case increases.
Multiple adjournments are perceived to be pro-advocate and anti-client. The Hindi film dialogue of “tareek pe tareek “says it all, and resonates strongly in the public mind. Again, from my recent experience, a strict approach towards adjournment requests can work wonders. Of course, the level and complexity of the challenges before the higher courts are of a different order altogether! Yet surely solutions are possible?
These are just examples of how the demand-supply framework helps us appreciate the key factors affecting pendencies. However, the way forward can only emerge from the collective wisdom of the higher judiciary itself.
Fortunately, there are welcome signs of change. After a long time, in current Chief Justice U.U. Lalit we have a CJI who has been setting an example in the apex court and motivating the judicial system to increase supply and accountability. With the same judicial resources and staff, the number of hearings and disposal of cases have reportedly gone up. Live streaming of Supreme Court proceedings has signaled a push for greater transparency. Hopefully the precedents set will continue, and spread.
For, as the old legal maxim goes, “justice delayed is justice denied.”
(The author is a former civil servant who has also served with the World Bank. He writes by invitation for RK)