Justice can be delivered in reasonable time without undertaking Major Reforms
We have been hearing that the Indian Judiciary would need decades to clear its backlog, unless the number of judges is increased multiple times and certain other reforms brought in. The judicial system has become irrelevant for the common citizens, and this is responsible for many ills plaguing our Nation, like disrespect for laws and corruption. The ease of doing business also suffers and the rule of law cannot really prevail.
Most people have started believing that this can change only if there are major judicial reforms, or judges do not give adjournments or forgo their vacations. These would require changing the attitudes of judges and lawyers and there is no sign of it happening. It would be very good if all this happens, but so far there is no sign of it. A fairly popular belief is that the problem will defy any solution unless the number of judges is increased by three to four times. It appears to have been accepted that a judicial system which can deliver timebound justice is unlikely, and the fundamental right to Speedy Justice will be a mirage for India.
I decided to try and evaluate how many extra judges would be required to start reducing judicial backlogs. The 20th Law Commission in its report no. 245 submitted in July 2014, after examining the issue from different perspectives has come to the conclusion that the Rate of Disposal per judge per year is the right method for evaluating this. In simple terms it assumes that if ten judges dispose 1000 cases, 12 judges will dispose 1200 cases. I took the data reported by the Law Commission in its report no. 245, and did that a proper analysis of its data for 2002 to 2012 of fourteen states for the subordinate courts it had taken. A proper analysis shows that if it had been ensured that all sanctioned positions of judges were filled there would have been no backlog by 2007[1]. This would mean the queue would disappear and it would have been possible to devote adequate time to all cases without having to wait. In most cases it may be possible to dispose cases in less than 3 months.
I decided to also take a look at this issue by analyzing the data given on the Supreme Court’s website at http://www.supremecourt.gov.in/publication for a ten year period from 2006 to 2015 which has a quarterly report for all the courts.[2] The summary of this analysis is tabulated below[3]. This shows that the number of sanctioned judges is adequate and if all the sanctioned judges were appointed mounting pendency would be history.
The number of judges sanctioned in the three levels on 31 December 2015 was 31, 1018 and 20620, whereas the actual number of judges was 26, 598 and 16119. Thus the total number of sanctioned posts were 21669 whereas the working judges were only 16743! Filling about 5000 vacant positions can make the judicial system deliver efficiently.
Another way of looking at this data is, for the ten year period from 2006 to 2015:
| Supreme Court | High Courts | Subordinate
Courts |
Total | ||
| Pending Cases in 2006 beginning | 34,481 | 35,21,283 | 2,56,54,251 | 2,92,12,021 | |
| Pending cases in 2015 end | 59,272 | 42,25,640 | 2,76,52,918 | 3,19,39,845 | |
| Total Cases
Instituted |
7,55,082
|
1,80,21,327
|
17,56,49,101
|
19,44,25,510
|
Average 194 lacs per year |
| Total Cases
Disposed |
7,30,420
|
1,65,39,732
|
17,33,62,326
|
19,06,32,478
|
Average 190 lacs per year |
| Increase in pending cases | 24,662
|
14,81,595
|
22,86,775
|
37,93,032
|
About 38 lacs in ten years |
| Missed disposal
Due to Vacancy |
73,042
|
51,27,317
|
3,46,72,465
|
3,98,72,824
|
About 399 lacs in ten years |
The increase in pendency in ten years was about 38 lac cases whereas the disposal missed due to not filling all sanctioned posts was nearly 400 lacs!
There can be no excuse for keeping judicial positions vacant while the nation suffers because of this neglect. The retirement date of judges is well known. It would be possible to factor in vacancies due to resignations, promotions and deaths by studying the past data. The increase of sanctioned positions can also be forecast early. We need just about 22000 judges. The number of registered advocates is about 1.3 million and over 60 thousand graduates emerge each year from our law schools. Even if infrastructure is inadequate it would need to be augmented by only about 20%. This is a simple solution and can be implemented very easily. This does not assume any change in the way judges and lawyers function. It only assumes that the extra judges who fill the vacancies will also dispose matters at the same rate as those who are already in the system. Over a reasonably long period all the variability of cases would even out.
I wondered why the judicial positions are left vacant in this manner. The recent decision of the collegium to share their decisions about appointments of judges on their website was a godsend. If analysed properly it appears to reveal that there is no system for ensuring that vacancies are filled up. It seems to follow no rationale or system. I am giving the results bellow:
From Supreme Court website: Number of months for collegium to give names to fill vacancy. After this the Central Government decides ! No wonder we have 30% average vacancy in High Courts and increase in backlog. This can be changed.
| Court | Vacancy
occurred |
Recommendation
Received from HC |
SC collegium
cleared |
Months after vacancy |
| Kerala High Court | March to
July 2016 |
February 2017 | October
2017 |
15 to 18 months |
| Madras High Court | Dec 2015
To May 2016 |
December 2016 | October
2017 |
16 to 20 months |
| Madras High Court | March 2017
To June 2017 |
January 2017# | October
2017 |
3 to 6 months |
# The Madras High Court did make the recommendation before the vacancies occurred.
Surely it can be ensured that this process can always be started six months earlier and the collegium recommendations are sent to the government three months before the vacancy occurs.
For the sake of the nation all those responsible must ensure that all judicial appointments are made in a timely manner. An easy solution is available. This analysis suggests that if a simple discipline of ensuring zero vacancy is followed, the sanctioned strength is adequate to dispose the inflow of cases and some backlog. Even if we assume that there would be upto 5% vacancies, the backlogs would go down. If this simple solution is implemented the problem will move towards a resolution.
Shailesh Gandhi; former Central Information Commissioner, shaileshgan@gmail.com
8976240798
I would be very happy to share the detailed working
[1] Analysis from Law Comm. Report Sheet 1
[2] Analysis from Supreme Court website – Sheet 1Supreme Court; 2 High Courts; 3 Subordinate Courts
[3] 3 Data from Supreme Court website- sheet 4