Judges In Relation To Population Ratio In India.docx

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JUDJES IN RELATION TO POPULATION RATIO IN INDIA (A Project of Law and Court Management)

Submitted to: Dr. GHULAM YAZDANI Submitted by: ZIAUL HAQ BA.LLB(5th Year, Sec-B) FACULTY OF LAW JAMIA MILLIA ISLAMIA

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ACKNOWLEDGEMENT At the outset, I would like to thank Dr. GHULAM YAZDANI for his guidance and support. Without his kind support, this submission could not have been possible in time. I would also like to express my heartfelt gratitude to the other faculty Members, for being immeasurably accommodating the requirements of this humble endeavor. I would like to thank my librarians, seniors, etc.

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TABLE OF CONTENTS TOPIC

PAGE NUMBER

 INTRODUCTION…………………………………………….4  JUDGES POPULATION RATIO AND VACCANCY OF JUDGES…………………………………...8  VACANCY OF JUDGES  DELAY IN JUSTICE………………………………………....11  REMEDIES TO OVERCOME DELAY(SUGGESTIONS)  LAW AND DELAY BY VACCANCIES…………………….16  SHORTAGE OF JUDGES NOT ONLY REASON FOR PENDING CASES……....……………………………...……..22  FACTS AND FIGURES…………………………………...….25  RATIO IN DIFFERENT STATES…………………..….....…29  HOW MANY JUDGES DOES INDIA REALLY NEED  THE LAW COMMISSION’S METHADOLOGY…………..33  THE DATA……………………………………………………..35  JUDGES ALONE ARE NOT THE ANSWER……………….37  OPINIONS OF JUDGES ON THE ISSUE OF POPULATION CASES………………………………………..38  CONCLUSION…………………………………………………42

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

INTRODUCTION

India has to suffer the scourge of the world's largest backlog of cases. Over three crore cases are pending in courts across India with 52,000 and 40 lakh cases pending in the Supreme Court and the High Courts only. Even though 1.35 crore cases were disposed off by the subordinate courts last year yet there is a backlog as 1.45 crore new cases were filed in the same year. With ours being one of the most competent judiciary in the world why is our judicial system so overburdened? Could be because of the fact that it takes an average of 15 years to get a case decided or could be because nearly three thousand judicial posts are lying vacant due to delay in recruitments (even the Apex Court and the High Courts are not untouched by this situation) or whether it could be attributed to government’s compulsive inclination of filing appeals in petty cases or can the whole backlogging problem be attributed only to lack of accountability, inefficiency and uneven application of law which favors the wealthy and the well connected? Backlogging apart from the reasons stated above is a product of Inadequate judge-population ratio and lack of infrastructure. Law Commission of India on 31st July, 1987 submitted its 120th report on Manpower Planning in Judiciary in which it compared India’s judge-population ratio vis-à-vis developed countries and found that the ratio in India is 10.5 judges per million people (lowest in the world) as compared to 41.6 per million people in Australia, 75.2 per million people in Canada, 50.9 per million people in United Kingdom and 107 per million people in United States of America (which was three times less populated than India in 1981 had 25,037 judges as compared to India’s total judge strength of 7,675 at that time).

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The Central (Government) has failed in its objective to extend the judge strength to 107 judges per million people by the year 2000 as recommended by the Law Commission of India. Even The Honorable Supreme Court of India in All India Judges Association &ors. V. Union of India &Ors. (JT 2003 (3) SC 503) observed that judge strength should be increased by 10 per million people every year for 5 years to meet at least the desired ratio of 50 to a million people. This observation too fell on center's deaf ears. We certainly need more courts and better infrastructure but it does not seem possible as in the name of so called judicial reforms, the government gives the judiciary, a meager budgetary support of 700 crore (0.078 per cent) in the Tenth five year Plan and 835 crore (0.071 per cent) in the Ninth Five year Plan. Such allocations are too inadequate to meet even the basic requirements of the judiciary. Besides adequate judge population ratio, taking recourse to Alternate Dispute Resolution Systems (ADR) like Mediation, Conciliation, Arbitration and Medulla should be encouraged. However, ADR’s are still not very popular in India even after more than half a century of statutory recognition first in the form of Arbitration Act, 1940 (repealed) and now the Arbitration and Conciliation Act, 1996. ADR’s which have now been made an integral part of our judicial process since 1st July 2002 by amending Section 89 of the Code of Civil Procedure, 1908 could be made popular only when there is a coordinated effort on the part of the Government and the Non-Governmental Organizations. There are other solutions too. Exemplary costs should be awarded to avoid frivolous litigation. A Central Legislation on the lines of Vexatious Litigation Prevention Act, 1949 (Madras Act VIII of 1949) should be passed where a habitual non bonafide person can be restricted from filing a case. For petty offences, village courts should be established.

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To achieve this, institutions like Gram Nayalya (Village Courts) and Gram Parishad (Village Board) should be strengthened. The laxity shown in examining a witness on a given date or not writing judgment in the prescribed time (30 days) or allowing lengthy arguments by the counsel should be disallowed. Only on rare occasions adjournments should be granted. Loopholes in the appeal provisions should be addressed immediately and one appeal policy be adopted. Laws similar to the Speedy Trial Act, 1974 (U.S) should be enacted which fixes standard time requirements for timely prosecution and disposal of criminal cases in district courts. Shift system wherein existing courts with the same infrastructure could be made to function in two more shifts with another judge, first shift (8 am to 10 am) and second shift (6 pm to 8 pm) should be introduced all over India as it was successful in bringing down the number of cases in the state of Gujarat. On the recommendation of the 11th Finance Commission, 1734 Fast Track Courts of Sessions Judge were sanctioned and they have drastically reduced the mounting arrears of cases. Similar scheme should be enacted for Magisterial Courts too. Mobile courts should also be set up which would not only educate the rural folk about their rights and responsibilities but will also provide swift justice and create a feeling of law and judiciary being very close to them. More offences should be made compoundable to bring them within the ambit of Plea bargaining. The above methods can certainly help declog the expanding docket of our overburdened courts. We are about to reach a tipping point wherein the whole system would collapse sooner or later if some drastic steps are not taken. I do hope that Government will take initiative to revive the

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confidence of people in the judiciary by devising a way to help cut down the mounting arrears of cases.

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JUDGES-POPULATION RATIO & VACANCIES OF JUDGES Presently, for dealing with the pending cases there must be required number of judges present to entertain the matter laid before them. But in Indian judicial system there is number of vacancies existing which ultimately affects the efficiency of rendering justice1. Former Chief Justice of India, S.P. Bharucha on this account said that "It is only when we have far more trial courts functioning that we shall be able to dispose of more cases than are being filed and thus cut down on arrears." In 2002, the total strength of judges in High Courts was 669 out of which 163 vacancies were not filled , which comes out to be 25% of the total strength. Like wise in Supreme Court out of total strength of 26 there were 2 vacancies. The condition at present is not better than the mentioned record data. It had also suggested by 127th Law Commission Report, 1988 that the judge-population ratio should be increased from 10.5 judges per million population (at that time) to 50 judges per million population within period of 5 year. It recommended that by the year 2000 the ratio should be increased at least 107 judges per million population. At present in India, the ratio is 12 or 13 judges per million populationwhere as 12 years before it was about 41 judges in Australia, 75 in Canada, 51 in U.K. and 107 in United States. Due to this low judge-population ratio, the courts are lacking requisite strength of judges to decide the cases. This judge-population ratio has been used for providing quantity of judges required to deal the cases. The government had neither taken any interest nor any steps to implement the said recommendation. In view of the government, the raising strength of judges 1

Justice Mohite S. Shah, Gujrat high court, Study of the American Legal System for Procedural Reforms in Civil

Courts in India, Accessed online at www.lawcommissionofindia.nic.in

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must be set on the basis of the pendency of cases and average rate of disposal, not simply on basis of population, which is absurd and without any principle of foresightedness.2 Filling the vacant seats of judges is not the sole responsibility of the government but judiciary plays crutial role in the appointment of judges. Supreme Court interpreted Article 124 and 217 of the Constitution of India, by its judgment in Advocates-on-Record Association vs. Union of India and others held that a proposal for the appointment of a Judge in the Supreme Court must be initiated by the Chief Justice of India, and in the case of a High Court by its Chief Justice and for the transfer of a Judge or the Chief Justice of a High Court to another High Court, the proposal has to be initiated by the CJI. Therefore, the judiciary is also responsible for not performing the duty of proposing the name for appointing judges to the government, which in turn would be sent to the President of India for appointments. Also according to the norms the process of filling up a vacancy should start six months before the actual date of retirement of a Judge. In 2002, there were 170 vacancies in High Courts, out of which only on 64 vacancies the process of filling began. Further, there was also delay in filling up the 1500 vacancies in the subordinate courts. Even today the position is same regarding the process of filling up of judges in place of retired judges.

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Speech by N.M. Ghatate, National Conference on "Reinventing Indian Legal System for Achieving Double Digit

Economic Growth, Assessed online at : www.ficci.com/media-room/speeches-presentation/2004/apl/apr10-justiceinug.htm

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Vacancy of judges It recommended that to increase the present 10.5 or 13 judges per million population to 50 judges per million population within 5 year period as decided by the Supreme Court in All India Judges Association and others Vs. Union of India. Also, it suggested that it is necessary for each State to make an estimate of the number of Judges required to be appointed having regard to pendency and inflow of fresh cases and nature of litigation. It also suggested for constituting a National Judicial Commission, being considered at the national level to deal with appointment of the Judges to the High Courts and the Supreme Court and to deal with the complaints of misconduct against them. It stresses on the quality with the quantity of judges.

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DELAY IN JUSTICE The reason one goes to court is to get justice, and "Justice Delayed is Justice Denied" Unfortunately the judicial system in India is based on Evidences and facts not conscience or morals, so it should be easier, once having the facts at hand, all it needs is argument and hearing and quicker pronouncement of Justice. A judicial system that cares only about evidences and facts shouldn’t worry about taming the souls of the plaintiff and the defendant with time rather give justice as quick as it can, this delay/denial of justice leads to increasing "Out of Court settlements" which are cheaper and quicker thereby leading to the loss of trust in our Judicial System. The judiciary is part of our democracy and all its implications must be imported into the judicial process. Once we accept the proposition that in a democratic society the court system plays a crucial role in seeing that neither licence nor absolutism becomes dominant, the difficult tasks of the court vividly stare us in the face. As Chief Justice Burger has noted: "A sense of confidence in the courts is essential to maintain the fabric of ordered liberty for a free people and three things could destroy that confidence and do incalculable damage to society: that people come to believe that inefficiency and delay will drain even a just judgment of its value; that people who have long been exploited in the smaller transactions of daily life come to believe that courts cannot vindicate their legal rights from fraud and over-reaching; that people come to believe the law - in the larger sense - cannot fulfill its primary function to protect them and their families in their homes, at their work, and on the public streets".3

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http://www.hinduonnet.com/thehindu/thscrip/print.pl?file=2003010700561000.htm&date=2003/01/07/&prd=th

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The first and the biggest problem is of the delay in disposition of cases. Due to huge pendency, the cases take years for its final disposal, which would normally take few months time. The arrears cause delay and delay means negating the accessibility of justice in true terms to the common man. The very core of a civil society and rule of law is the provision of justice, but the decision must be delivered within a reasonable time. It is totally unfair if a suspected criminal waits for trial for years and is ultimately found innocent. Similarly, the victim of the crime will be also not satisfied if there is no punishment to the criminal for so long. Only speedy justice could ensure effective maintenance of Law and order. Quality of justice not only promotes peace in the society but also strengthens internal security of the country. There are number of litigations which could be avoided if Govt. officials had taken interest, for e.g. section 80 of CPC require a prior notice of two months to Govt. by a party who wish to sue the Govt. The purpose of this section is to give time to Govt. to settle the matter with such party by taking proper and suitable action, and thereby could avoid unwanted and unnecessary litigation. But the utter failure of Govt. official in taking a quick, bold and suitable action inspite of giving time forces a person to file case. As of January 2005, pending cases in the Supreme Court number 30,000, in high courts over 33.79 lakh and in subordinate courts over 2.35 crore - a totally unacceptable situation. Much of this is due to shortage of judges. The ratio of judges to population is 10.5 to one million, the lowest in the world. Even this low level is not reached because of the accumulation of vacancies in the Benches -140 against the approved strength of 668 judges in high courts and 2000 against 15000 in subordinate courts.4

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http://iecolumnists.expressindia.com/full_column.php?content_id=23229

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Though, the Supreme Court and High Courts are having good infrastructure but this in not the same position with lower courts. The Courts have no convenient building or physical facilities. The executive has failed to provide necessary infrastructure to enable judiciary and function normally. Good library, requisite furniture, sufficient staff and reasonable space are the need of the qualitative justice. In some courts security systems is also not good. The legal profession is one of the most struggling profession but no social security scheme is available for lawyers, some financial aid should be provided to Bar associations or the new beginners by the government. The good working condition of the lawyers would help in the excellence of service and qualitative justice to the litigating public.

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REMEDIES TO OVERCOME DELAY (SUGGESTIONS):There is need to establish more courts and to increase number of judges according to population. While the population of the country and the number of cases has increased manifold, the judgment services appears to be understaffed. Same is the position of the courts, where number of courts are less in comparison to the need. As it is estimated that India has, only about II Judges per million population, which is among the lowest ratios in the world. Obviously, there is an urgent need to increase the number of judges specially at the local level for giving access to the ordinary people.

It is needed to establish a body at national level composed of Judges, Lawyers and Legal academics, which should be charged with a duty to conduct examinations for recruitment to Indian Judicial Service (IJS). Article 233 will have to be amended to confer power on the president to appoint members of Indian Judicial Services on the recommendation of National Judicial Service Commission. The creation of Indian Judicial Service is appeared necessary to get best available talent in the country.

Though, already a demand of establishing large number of ordinary courts is pending, yet special courts have its own importance. In developing countries the corruption is growing like cancer and unless cases are taken up and decided early, the disease will spread further. The special courts and prosecuting agencies may be appointed to deal with cases of corruption and cyber crimes. The beginning may be made in Delhi and other state capital where the number of cases is highest.

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There is urgently need to imporove the basic infrastructure and management of resources. Modern technology and use of computers could also increase the efficiency of the court system. The judiciary has also to learn management techniques through training at all levels. Though, the Supreme Court and High Courts are having good infrastructure but this in not the same position with lower courts. The lower courts are the basic institution of justice and to improve the quality of the justice dispensed with, it is necessary to improve their infrastructure by modern technology. Lack of funds should not be allowed to enter in the way of development of infrastructure, as external security is necessary, internal maintenance of law and order is also necessary for the internal security, national interest, peace and progress. In general budget certain handsome amount could also be allocated to judiciary like defence and education or a separate judicial budget should be placed, like railway budget. The panel of government lawyer should also be on merits not on the basis of nearness to ministers. As the government is the largest litigant, more transparency is required on their part. Govt. counsel should be selected on the basis of merit, efficiency, integrity, by some transparent manner. There should also be some permanent vigilance provision to observe the working of the public prosecutors. Security system in courts also needs improvement for proper confidence of people and fearless functioning of system. Information-counter should be set up in every court for the convenience of litigating public.

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LAW AND DELAY BY VACANCIES IF a phenomenal increase in litigation is a sign of an extraordinary growth of awareness among the citizens about their rights, an unreasonable delay in the administration of justice will certainly be seen as constituting an unconscionable denial of justice. In a remarkable display of candour, Chief Justice of India S.P. Bharucha and parliamentarians who constitute the Standing Committee on Home Affairs have sought to identify the roots of judicial delays. However, they revealed divergent perceptions on the issue. The Chief Justice of India, S.P. Bharucha. While he has made a convincing plea for an acrossthe-board increase in the number of judges, he seems to have no explanation to offer on why the vacancies are not being filled. In its 85th report on 'Law's delays: Arrears in courts', to be laid in Parliament during the Budget session, the Standing Committee, chaired by senior Congress(I) leader and member of the RajyaSabhaPranab Mukherjee and consisting of more than 40 members drawn from the LokSabha and the RajyaSabha, has estimated that a staggering 2.4 crore cases are pending in the country's courts. As on October 31, 2001, 2,03,25,756 cases were pending in the district and subordinate courts, 35,57,637 in the High Courts and 21,995 in the Supreme Court. The Committee has found that a large number of vacancies of Judges and a low judge-population ratio have caused a formidable accumulation of cases and inordinate delays in the dispensing of justice. It feels the Indian judiciary, in spite of the many outstanding achievements it has made on behalf of democracy and the rule of law, is faced with challenges that can only be met with constructive cooperation among the three branches of the state (the executive, the legislature and the judiciary), the fourth estate, and the people at large.

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But cooperation between the three branches of the state on this issue, however, seems to be elusive given the divergent perceptions as revealed by the Committee members. The views on the judge-population ratio offer an example. Justice Bharucha, in his Law Day address delivered in the Supreme Court on November 26, 2001, laid the blame for the arrears squarely where he thought it belonged. He agreed with the suggestions in Law Commission's 127th Report, made as far back as 1988. The Law Commission had recommended that the state should improve the Judge-population ratio, which at that time was 10.5 Judges per million population, to at least 50 judges within the following five years. The Commission had further recommended that by the year 2000 India should command at least 107 Judges per million of population. Justice Bharucha said the current ratio was 12 or 13 Judges per million, whereas 12 years ago it was about 41 in Australia, 75 in Canada, 51 in the United Kingdom and 107 in the United States. In his inaugural address at the State Lawyers Conference in Pune on February 9, Justice Bharucha commented that the Law Commission's report would appear to have been shelved to moulder. Justice Bharucha's analysis of why India could not better its judge-population ratio is incisive. "The States are, quite simply, not interested in doing anything about it. They have no money to spend on the judiciary. That it is the obligation of the state to secure justice for its citizens does not bother the States: litigants are not a vote bank they need to cater to. That the obligation of the state to secure justice to its citizens is honoured in the breach every day is evident from the fact that the jails in the country are chock-a-block and a very large proportion of those who are within are not convicted criminals but accused awaiting trial."

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Justice Bharucha estimated that the expenditure on the judiciary in terms of gross national product (GNP) was only 0.2 per cent, and that half of it was recovered by the States through court fees and fines. He pointed out that the Judge strength needed to be substantially increased across the board. The greatest and most urgent need, however, was to increase the strength of the subordinate judiciary, he said. "It is only when we have far more trial courts functioning that we shall be able to dispose of more cases than are being filed and thus cut down on arrears," he said.

The Standing Committee's report reveals that the government did not accept the Law Commission's recommendation with regard to the judge-population ration. The government argued that it would be a moot question whether to raise the number of judges simply on the basis of population size. The government was also of the view that it would perhaps be appropriate if the strength was increased on the basis of the pendency of cases and the average rate of disposal.

The Committee, however, has expressed its disagreement with the government. The reasons cited by the government for the mounting arrears of cases include, among others, industrial development in the country and increased trade and commerce and pursuit of socio-economic measures. The increase in the population could be added to these factors, the committee has suggested. The Law Commission's recommendation was based on a rough-and-ready computation; it should be accepted as a starting point with sufficient scope for variation on the basis of pendency and disposal, the committee reasons. It has recommended that the Centre take the initiative to provide funds to the States and create mechanisms to monitor their utilisation.

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While both the Committee and the Chief Justice agreed on the need to increase the judgepopulation ration, they differ on the question of filling the vacancies of judges. Even though Bharucha has made a convincing plea for an across-th-board increase in the number of Judges, he seems to have no explanation why the existing vacancies have not been filled. The blame for this, he must admit, belonged to the higher judiciary.

After the judgment of the Supreme Court in Advocates-on-Record Association vs. Union of India and others on October 6, 1993, a proposal for the appointment of a Judge cannot be initiated by the government. According to the judgment, read with the Supreme Court's advisory opinion of October 28, 1998, a proposal for the appointment of a Judge in the Supreme Court must be initiated by the Chief Justice of India, and in the case of a High Court by its Chief Justice. For the transfer of a Judge or the Chief Justice of a High Court to another High Court, the proposal has to be initiated by the CJI. The Committee observed in its report: "The judiciary in whom the power and the responsibility now vest has failed to fill up the vacancies in judicial posts promptly and punctually and those vacancies of Judges in all courts contribute to the huge pendency in a big way." It adds that the modes of collegiate consultation among Judges (before initiating a proposal) might have led to a "politics of the judiciary".

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Members of the collegium, the Standing Committee has alleged, may bring in candidates of their choice. "The give-and-take in the collegiate consultation has the potential of undermining merit. It is also fraught with the potential of undermining the office of the Chief Justice and his primacy. On the other hand, the executive is unable to secure due consideration of its own inputs in respect of the personal and professional standing of the candidate. More often than not a transferred Chief Justice in a High Court is unfamiliar with the situation. As a result, there are unacceptable delays without the benefit of a higher quality in the intake," the committee has explained. According to the norms the process of filling up a vacancy should start six months before the actual date of retirement of a Judge. Law Minister ArunJaitley conceded in the RajyaSabha on December 3, 2001 that he had not come across a single case where the process had been initiated six months earlier than the date of retirement. There are 170 vacancies in the High Courts present, but the process of filling up vacancies has started only in 64 cases. The process had not yet been initiated for the remaining 106 vacancies, Jaitley said.5 Similar factors appear to account for the delay in filling the 1,500 vacancies in the subordinate courts. The High Courts, in consultation with the State governments, choose the Judges in the subordinate courts. The principle of collegiate consultation among senior judges of the Supreme Court, including the CJI, before initiating a proposal for filling up a vacancy in the Supreme Court and the High Courts, introduced by the 1993 judgment and the 1998 advisory opinion, no doubt, is a safeguard against arbitrary use of primacy by an incumbent CJI in the selection

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The Supreme Court of India. As on October 31, 2001, 21,995 cases were pending in the apex court alone.

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process. However, as the Committee has pointed out, this has meant that lack of agreement within the collegium of seniormost Judges on the choice of new Judges would delay the process.

The Committee observes: "The Union Law Minister is accountable to Parliament for the delay in filling up of the vacancies of Judges, but he has functionally no contribution to make. The Supreme Court read into the Constitution a power to appoint Judges that was not conferred upon it by the text of the context." The Committee makes it clear, recalling a recent demand made in the RajyaSabha for a fresh review of the Supreme Court's 1993 judgment, that failure to fill judicial vacancies promptly and punctually cannot be defended in the name of judicial independence."6

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Volume 19 - Issue 05, Mar. 02 - 15, 2002 India's National Magazine from the publishers of THE HINDU

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Shortage Of Judges Not The Only Reason For Pending Cases Contrary to common perception, the shortage of judges is not the “sole reason” for increasing pendency of cases, the law ministry has said, citing data of states such as Delhi and Gujarat, which are struggling to dispose of cases despite a higher ratio. judge-population The ministry’s note comes months after Chief Justice of India TS Thakur lamented “inaction” by the executive to increase the number of judges from the present 21,000 to 40,000 to handle the “avalanche” of litigations.7 Quoting experts, the ministry said a variety of factors contribute to delay in disposal of court cases, which include lack of court management systems, frequent adjournments, strikes by lawyers, accumulation of first appeals, indiscriminate use of writ jurisdiction and lack of adequate arrangement to monitor, track and bunch cases for hearing. According to the data, states with a higher judge-population ratio, such as Delhi (ranked 2 in terms of the judge-population ratio) and Gujarat (ranked 5), are still struggling to dispose of the pending cases. “Conversely, states such as Tamil Nadu and Punjab, which are ranked lower in terms of judgepopulation ratio, have comparatively lesser number of pending cases,” it says.

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. Text of Speech - Addresses by the Chief Justice of India at the joint conferences of Chief Ministers and Chief Justices, 2006, 2007 and 2009.

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A note prepared by the ministry for the advisory council of national mission for justice delivery and legal reforms states that “the linking of problem of pendency of cases in courts with shortage of judges alone may not present the complete picture”.

It states that an analysis of the figures regarding the number of civil cases instituted per annum in district and subordinate courts between 2005 and 2015 reveals that the number of cases instituted has come down from 40,69,073 civil cases in 2005 to 36,22,815 in 2015 — a decline of 11%. During the same time, the pendency of civil cases increased from 72,54,145 in 2005 to 84,056,47 in 2015 — an increase of 16 per cent.8 “It is pertinent to note that in 2005, the working strength of the judges in the district and subordinate courts was 11,682, which increased to 16,070 in 2015. Despite the increase in the number of judges and a decline in the number of cases being filed, the pendency of civil cases has increased,” the document observed.9 Addressing the inaugural session of Joint Conference of Chief Ministers and Chief Justices of High Courts here on April 24, Justice Thakur had said that since 1987, when the Law Commission had recommended increase in the number of judges from then 10 judges per 10 lakh people to 50, “nothing has moved”. “Then comes inaction by the government as the increase (in the strength of judges) does not take place,” he had said.10

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http://iecolumnists.expressindia.com/full_column.php?content_id=23229 Shortage of judges not the only reason for pending cases: Law ministry india Updated: Oct 10, 2016 18:43 IST 10 Law Commission, 120th Report on “Manpower Planning in Judiciary – A Blue Print” (July, 1987). 9

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There are 4,432 vacancies of judges in subordinate courts in the country as on December 31, 2015, while the 24 high courts face a shortage of nearly 450 judges. Nearly 3 crore cases are pending in courts across India.

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FACTS AND FIGURES There have been Chief Justices in India who have given us rhetorical speeches and there are who have been silent but for the person holding the apex position to leap forward beyond the designated shackles of the aura of that office and to almost shed tears in front of the PM of India points out the extremes of the Judicial inefficiency we have attained and how much urgently we need to revisit the whole foundation of Judiciary to know both in the parameters of quantity and quality, the situation of judges in the third and in the light of judicial activism perhaps most reliable voice of all of us. In the month of May, 2016 Chief Justice of India expressed his deep concern through these words “He referred how the Law Commission in 1987 had recommended 40,000 judges in the country to tide over the problem of pendency of that time. Its report had said that there were only 10 judges to a million populations when there should be at least 50 judges per 10 lakh population. Noting that population has increased by over 25 crore since 1987, Chief Justice Thakur said the only solution to this extraordinary situation was to bring back proven judges from retirement in a bid to dispose of cases which are more than five years old. ’’11

The data relied upon by Hon’ble T S Thakur can be founded in the landmark case of All India Association v Union of India12 in which Apex Court expressed its desire that the number of

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KrishnadasRajgopal, CJI made emotional appeal to Modi to protect Judiciary http://www.thehindu.com/news/national/cji-thakurs-emotional-appeal-to-modi-to-protectjudiciary/article8516096.ece

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judges be increased in a phased manner in 5 years so as to raise the Judge-Population ratio to 50 per million. This case founds its support in the report published by Committee on Reforms of Criminal Justice by Justice V.S.Malimath.13 In another landmark case, P RamachandraRao v State of Karnataka14 in Para 11 court clearly mentions that “The root cause for delay in dispensation is poor judge-population ratio” Going further the judges sternly says that “Touch of sad sarcasm is difficult to hide when the Law Commission observed (in its 120th Report, ibid) that adequate reorganisation of the Indian judiciary is at the one and at the same time everybody’s concern and, therefore, nobody’s concern.” Law Commission in its 125th report relied upon P Ramachandra Rao v State of Karnataka to raise the issue of judge-population ratio in India.15 While definitely concerns have been raised by Law Commission as back as 1987 when they noted the low Indian ratio of 10.5 judges per million people and recommended increasing it to 50 with immediate effect and to over 100 by 200016 , none significance steps have been taken. Law Commission’s recommendation was reiterated by a Parliamentary Standing Committee in February 2002 when it stated that a low judge-population ratio have caused a formidable accumulation of cases and inordinate delays in the dispensation of justice.17

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(2002) 4 SCC 247 http://www.mha.nic.in/hindi/sites/upload_files/mhahindi/files/pdf/criminal_justice_system.pdf 14 (2002) 4 SCC 578 15 http://lawcommissionofindia.nic.in/reports/Report245.pdf 16 http://lawcommissionofindia.nic.in/101-169/report120.pd 17 The law and delays, V Venkatasan, http://www.frontline.in/static/html/fl1905/19050260.htm 13

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But worry starts when India’s judge to population ratio is still significantly lower compared to developed economies18 and has the lowest number of judges among the major democracies of the world.19 In another committee, Committee on empowerment of Women stated in 2013 that “There are about 13 judges for every one million population. This is against an average of 50 judges per one million population in developed countries and 35-40 in some other developing countries…in the High Courts, there are 895 permanent judges, whereas the actual strength is less than 700.20The number of judges per million of population is 10.5 judges per million.21 In a question put which was put forward in LokSabha on 14.7.2014, judge/judicial officers population ratio was stated as 16.8 Judges per million population.22

While data’s pertaining the issue we are involved with are definitely depressing, a ray of hope rises when AlokPrasanna Kumar argues that the nonetheless of the existing low-judgepopulation ratio our judges are disposing of the number of judges in the proportion of the cases which are being filed in court. So, the focus perhaps should be on disposing back-log cases. For instance, between July 2014 and July 2015, with a working strength of between 15,500 and 15,600 judges, the subordinate courts in India disposed of about 18,730,046 cases as against

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http://www.prsindia.org/administrator/uploads/general/1251796330~~Vital%20Stats%20%20Pendency%20of%20Cases%20in%20Indian%20Courts%2026Aug2009%20v10.pdf 19 http://www.tribuneindia.com/2012/20120313/edit.htm#6 20 http://articles.economictimes.indiatimes.com/2013-05-09/news/39144068_1_judges-high-courts-justice 21 R.C. Lahoti : Envisioning Justice in the “21st Century” 2004(7) SCC Journal p 13 22 http://164.100.47.192/Loksabha/Questions/QResult15.aspx?qref=5516&lsno=16

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18,625,038 cases which were filed in the same period — just a little more than the number of cases filed.23 While courts have resorted to mediation and conciliation proceedings, setting up of tribunals and temporary courts, the amount of cases pending are increasing and one can resort to bringing retired judges to deal with them. While arguments are definitely in favour of increasing the judge-population ratio but one cannot completely be in ignorance of the criticism which judiciary itself will face pertaining the credibility driving such high rate of disposal of cases. Undoubtedly we need more judges but simultaneously also maintaining the loyalty which Judiciary has shown to Constitution of India.

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AlokPrasannaKumar,GrowingBacklog:How many Judges does India really need? http://www.hindustantimes.com/india-news/growing-backlog-how-many-judges-does-india-really-need/story9jfx0RJT23Ti9Y3053XsSM.html

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RATIO IN DIFFERENT STATES According to data from the Law Ministry, the judge to population ratio in India stands at 17.86 judges per 10 lakh people. Mizoram has the highest judge to population ratio at 57.74. In Delhi, it stands at 47.33, while in Uttar Pradesh, the most populous state of the country, the ratio is 10.54 judges per 10 lakh people. West Bengal has the lowest ratio at 10.45 judges per 10 lakh people. The sanctioned strength of the Supreme Court stands at 31 judges, including the Chief Justice of India, as compared to 25 in 2009. The apex court faces a shortage of three judges. Four new judges were recently appointed to the apex court. The sanctioned strength of the high courts till 2014 was 906 judges. It increased to 1,079 in June this year. There are 24 high courts in the country. However, despite an increase in the sanctioned strength, the high court, as on August 1, faced a shortage of 478 judges. Only the Tripura High Court functioned with its total strength of four judges. The Allahabad High Court, with an approved strength of 160 judges, had vacancies for 82 judges. The Karnataka High Court, having a sanctioned strength of 62 judges, faced a shortage of 36 judges. The subordinate courts in the country, the backbone of the justice delivery system, have a sanctioned strength of 20,502 judges. But there were only 16,070 judicial officers serving in the courts and the shortage stood at 4,432 as on December 31, 2015.

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Addressing the inaugural session of the joint conference of chief ministers and chief justices of high courts here in April, CJI T S Thakur had said, since 1987, when the law commission had recommended an increase in the number of judges from then 10 judges per 10 lakh people to 50, “nothing has moved”. In a written response, Minister of State for Law P PChaudhary told the LokSabha recently that the commission in its 254th report reviewed the criteria of the judge-population ratio on a request from the Supreme Court.

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HOW MANY JUDGES DOES INDIA REALLY NEED? In most years, the annual Joint Conference of Chief Ministers of the States and Chief Justices of the High Courts gets barely a passing mention in media outlets and is forgotten soon after. This year it was different. Chief Justice of India (CJI) T.S. Thakur’s dramatic outburst in April about the “burden” being placed on the judiciary firmly brought the spotlight back on to the issue of judicial delays and backlogs in India. He lamented the delay in trials, which has seen the number of undertrial prisoners burgeon. Trials take decades to complete, he said, pointing to the inadequacy of judicial strength as the prime cause. In May, Thakur quantified this inadequacy with a claim that India needs 70,000 judges to clear the pending cases. Where does the 70,000 number come from? The basis for this, as his speech at the Joint Conference of Chief Ministers of the States and Chief Justices of the High Courts indicates, is the benchmark of having 50 judges per million population. With India’s population being pegged at 1.2 billion as of May 2016, applying this benchmark, India should have approximately 60,000 judges. As on 1 January 2016, according to Court News, a publication of the Supreme Court of India, there were 16,119 judges in the subordinate judiciary, 598 in high courts and 26 in the Supreme Court.

The latest figures (as on 11 July 2016), as seen from the National Judicial Data Grid and Department of Justice data, tell us that there are 16,438 judges at the subordinate judiciary level,

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621 in high courts and 29 in the Supreme Court. All of this suggests that getting anywhere close to CJI’s benchmark of 70,000 or even 65,000 is going to be a herculean, if not impossible, task in the next few decades. However, a fundamental question needs to be answered: Do we actually need 70,000 judges to dispose of the pending 32 million cases in the Indian judicial system? The numbers suggest otherwise. For a start, even with the present strength, courts dispose of almost as many cases as are filed in a given year. For instance, between July 2014 and July 2015, with a working strength of between 15,500 and 15,600 judges, the subordinate courts in India disposed of about 18,730,046 cases as against 18,625,038 cases which were filed in the same period—just a little more than the number of cases filed. This must give us pause to question once again the basis for the figure of 70,000 judges.

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THE LAW COMMISSION’S METHODOLOGY The origin of the benchmark of “50 judges per million” lies in the 120th report of the Law Commission of India. That report itself is very laconic. It is all of five pages long. While it suggests rate of pendency or rate of litigation as a basis to fix judges’ strength, it doesn’t actually carry out the mathematical exercise of arriving at a number on the basis of available data. Rather, the Law Commission looks at numbers of judges in other countries such as the US and decides India should have as many judges as the US at least, without comparing the number of cases in the system, the underlying economy, and the capacity of the judicial system to handle the workload. The basis to argue for a benchmark of 50 judges per million is flimsy, to say the least.

AN ALTERNATIVE METHODOLOGY A case cannot be disposed of in a mechanical fashion like a post office would despatch a parcel. One or more hearings have to take place, evidence has to be presented and the judge has to apply her mind. A proper time frame for the disposal of a case has to be fixed. Assuming that an outer limit of three years is fixed, we can assess how many judges we need to dispose of existing cases, whether they were filed a day earlier or 10 years ago. This methodology was adopted by the Law Commission of India in its 245th report Arrears and backlog: Creating additional judicial manpower and is also routinely used within governments and the judiciary to assess judge strength.

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Another way to approach the need for additional judges is to determine what role they are going to play within the judicial system—are they needed to handle the entire incoming load or the existing backlog?. The numbers tell us that the present strength is about adequate to ensure that the number of pending cases doesn’t increase too much on a year-to-year basis. Therefore, it might be the case that what India really needs are more judges to handle the backlog; that is, pending cases which haven’t been disposed of for a long time. There are two good alternative ways of looking at solving the pendency problem within three years by calculating how many additional judges are required to hypothetically 1) dispose of all cases currently in the system and 2) dispose of only cases that have been in the system for more than two years, since the judiciary appears to be able to deal with the current incoming workload of cases somewhat adequately. For the purpose of this analysis, we will focus on the district courts.

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THE DATA Data on the time period for which a case has been pending as on 31 December 2015 in the district courts has been obtained from the Department of Justice, which itself obtained this data from the jurisdictional high courts directly. Looking at the numbers available in Court News, which contains details of the cases filed and disposed of in the trial courts, it is possible to see the average number of cases a judge decides in a year. Since the manner of counting a case is different in each state, the five-year average rates of disposal in each state vary. The wide variance seen in the number of cases disposed of per judge can be attributed to the fact that not all states count what is a case in the same way. Some courts count only the main case whereas some others include the interim applications and miscellaneous proceedings within that case separately. Be that as it may, this gives us some idea how many judges each state would need to dispose of its backlog.

Applying this rate to the pending cases, we can figure out how many additional judges are needed, depending on whether we’re looking to dispose of all pending cases in three years or just the cases that are older than two years. Far fewer judges required than expected The overall picture suggests that the number of additional judges needed is much lower than the figure cited by CJI. And in some states, the current strength and rate of disposal is enough to dispose of all cases more than two years old within the next three years, whereas in others, filling up the current

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vacancies would serve the same purpose. However, there are some states where the sanctioned strength of judges needs to be increased dramatically to be able to do so. As the numbers show, with either of the objectives, Bihar clearly has the worst problem of lack of judicial capacity in the lower courts, whereas Odisha and Jharkhand also have significant problems on this front. Another way of looking at it could also be to show that the judicial systems in these states don’t function very efficiently. It might mean that the pendency and delay might come down if the courts just functioned more efficiently, with fewer adjournments, more hearings, better infrastructure and support. Even so, going by the information in Court News, most states would be able to handle the burden of pending cases if they appoint a reasonable number of judges in addition to their existing strength.

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JUDGES ALONE ARE NOT THE ANSWER Even if one were to accept that more judges are necessary, the present quality of lawyers and the appointment mechanisms don’t make scaling up (even to the modest numbers suggested in this article) entirely feasible. Either the quality requirements will have to be seriously compromised or the terms and conditions of service of being a judge must be vastly improved, involving heavy, recurring expenditure for states. Other options, such as changes in procedure, improved quality of law graduates, greater use of information technology, alternative dispute resolution must all be explored to ameliorate the situation.

In actually implementing judicial reform, a credible cost-benefit analysis is

imperative. For that we need a dispassionate data-driven approach to the problem and understanding of the limitations of the legal ecosystem we are working in. Adding to the strength of the judiciary is no doubt necessary to some extent, but it should not occupy all the energies and resources available.

AlokPrasanna Kumar is a senior resident fellow at the Vidhi Centre for Legal Policy. Additional research to this story contributed by Vidhi interns KanikaSood and AkshayShandilya. Mint’s association with LegallyIndia.com will bring you regular insight and analysis of major developments in law and the legal world.

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OPINIONS

OF

JUDGES

ON

THE

ISSUE

OF

POPULATION OF JUDGES Addressing the conference of Chief Justices and Chief Ministers, Chief Justice of India (CJI) Tirath Singh Thakur became emotional as he spoke about the shortage of judges in the country, telling the audience, which included Prime Minister NarendraModi and Union Law Minister D V SadanandaGowda, that the judiciary shouldn’t alone have to bear the cross for the huge pendency of cases in the country. Referring to the shortage of judges — both in lower and higher judiciary — in the country, the CJI lamented the “inaction” on the government’s part in strengthening judicial infrastructure and increasing the judge-population ratio to deal with the mounting number of cases. While the CJI did manage to put the government on the backfoot, answers to the real issues remained elusive. First, the facts. India has a total of 21,598 judges (sanctioned strength till December 31, 2015). This figure includes 20,502 judges in lower courts, 1,065 high court judges and 31 Supreme Court judges. However, on the day CJI Thakur made his impassioned speech (April 24), there were six vacancies in the Supreme Court, 432 in the various high courts and a whopping 4,432 (as of December 31, 2015) in the subordinate judiciary.

But, more importantly, if all the 20,502 posts of judges in the subordinate judiciary are somehow filled, there wouldn’t be enough courtrooms to accommodate all of them since there are currently only 16,513 courtrooms —a shortfall of 3,989 — across the country. Judicial infrastructure, it is clear, hasn’t kept pace with the rate of litigation.

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In 1987, the Law Commission of India pointed out that the judge-population ratio in India was only 10.5 judges per million population (it is now 12 judges per million) while the ratio was 41.6 in Australia, 50.9 in England, 75.2 in Canada and 107 in the United States. The Commission recommended that India required 107 judges per million population. It also suggested that to begin with, the judge strength could be raised five-fold (to 50 judges per million population) in a period of five years. Almost 30 years later, even that five-fold-increase target looks distant. The gravity of the situation is all the more pronounced when you consider the fact that there are 38.76 lakh cases pending as on December 31, 2015, in all high courts, of which 7.45 lakh — almost 20 per cent — have been pending for over 10 years. The situation in subordinate courts is not any better. Of the 2.18 crore cases pending in lowers courts in the country, 1.46 lakh are criminal cases and over 72 lakh are civil cases. Interestingly, while the Supreme Court saw a rise in the number of cases disposed of over three years — from 40,189 in 2013 to 47,424 in 2015 — the figures for disposal by high courts actually went down from 17.72 lakh to 16.05 lakh in that period. Subordinate courts too have shown a fall in the disposal rate, with 1.87 crore cases being disposed of in 2013 and 1.78 crore being disposed of in 2015.

Attorney General of India MukulRohtagi says, “I think there is needless interference and no selfrestraint by the judges. Too much time is being wasted on cases that are plain frivolous. Frivolous cases that consume too much court time should be dealt with a heavy hand and exemplary costs should be imposed on such litigation. The same must be done for cases where corporates file frivolous cases against their business rivals. The judiciary will have to devise a

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way to deal with this. Unless this is done, even a ten-fold increase in the strength of judges won’t serve any purpose.” Former Supreme Court Judge H S Bedi agrees. “Frivolous litigation needs to be tightly regulated. I also agree that in some cases, judges overstep the boundary. They must remember that courts can’t be a substitute for the government.” He also added that while speedy disposal of cases should be a priority, cases must not be dismissed only because it amounts to addition in the number of disposed cases. “Cases must be decided on merit, not because speedy disposal needs to be done.” “It is not possible to fill all vacancies in one go. How can the Chief Justice and collegium of, let’s say, the Allahabad High Court, recommend names for all the 75-odd vacancies that exist right now? For this, they will have to really lower the standard and opt for sixth- or even seventh-tier lawyers. Also, how can the government expect Chief Justices (of high courts) to recommend names when earlier names recommended by them are still under process? But I strongly feel that the existing system of bringing 30 per cent (HC) judges from the subordinate judiciary is flawed since the person who comes at the fag end of his or her career becomes a high court judge only due to seniority. Such a person will only spend their time waiting for eventual retirement. I think either this quota needs to be revised or such elevations must only be on the basis of performance as a judge,” notes Justice Bedi.

“Over the years, I have seen a general reluctance among good lawyers to accept judgeship. But I refuse to accept that money is the only criteria behind this. Anybody who accepts it has to do it for the honour, prestige and dignity attached to it. It may be the case that now many good

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lawyers don’t feel there is enough dignity in being a judge. But this must change,” says former Union law minister and senior lawyer Ashwani Kumar.

As a former Supreme Court judge who was a member of the collegium says, there is no “quickfix solution” to the issue of shortage of judges and pendency. “It is only in the last 15 years or so that we have started talking about the judicial system and the issues connected to it. Look at the money that the governments were earlier allocating to the judicial sector for creation of infrastructure and hiring more judges. It was dismal, and I am being charitable. However, now both the Supreme Court and Central and state governments are aware of the situation and are working together to find solutions. Funds, while still not adequate, are more freely available and are being spent. In most states, there is a visible change in the infrastructure,” says the judge, who didn’t wish to be quoted. As per government figures, from Rs 1,245 crore spent on creating judicial infrastructure under the centrally sponsored schemes between 1993 and 2011, the amount went up to Rs 3,695 crore from 2012 to 2016.

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CONCLUSION