INDIA: Mere increase in the number of judges will not end delays

The Chief Justice of India, Mr.T.S. Thakur, has once again appealed to the Government of India regarding the immediate need to appoint judges in the country. Citing reports of the National Law Commission from 1987, Justice Thakur said that the Commission had assessed that to tackle court delays the country required at least 40,000 judges as early as 1987. Today, 29 years after the Commission’s report, Justice Thakur noted that at least 70,000 judges would be required to address the enormous backlog of cases.

Delay in India’s justice process has been a matter of concern for at least the past six decades. A common reason attributed to this is the widening gap in the judge to population ratio, which is one of the biggest in the world. The existing number, of about 15,600 judges, makes the ratio an estimated 13 judges per million people. The Law Commission, the Supreme Court of India, and the National Court Management System suggests that this should be increased to at least 50 judges per million people. However, the truth of the matter is that a mere increase in the number of judges will not address India’s court delays.

The professional capacity of judges to handle cases within a reasonable time is one major aspect of the delay issue, not limited to the numerical strength of judges. Such professional capacity is influenced by various factors, including the amount of administrative work a judge has to undertake each day; the number of cases each judge has to deal with, which is directly related to the number of cases filed in each court; the quality of the substantive content of the litigation; professional training judges receive in case management as well as on law and procedures; and the administrative capacity and professionalism of each court’s registry.

Global standards do not show the whole picture

Although there are references to ‘global standards’ of a suitable judge to population ratio, there is substance in the argument that such a magic number cannot be arrived at by referring to a universal norm. This is because several factors, including those listed above and more, must be weighed in before a norm is set. This could vary widely between jurisdictions.

The social, economic, political and legal landscapes in jurisdictions can be different from one another. China and Bangladesh have a higher number of judges per million people than India, yet both these countries have their judiciary under absolute executive subjugation. Trials in China last for mere days, and sentences are often carried out in criminal cases even before allowing the convict adequate time for appeal. Judicial delay is therefore addressed in China, but justice is missing in the entire process.

Corruption within the judiciary

In India, the administrative process that a case file has to go through before the case is heard in court and beyond is enormous and cumbersome. Corruption is a huge problem and it is easy to bribe the officers in the court registry and get a case file delayed for decades, or fast-tracked to enable the case to be heard within hours. The Indian judiciary that has absolute control over the court registry has thus far failed to address corruption within its own premises. Further, an alarming number of Indian judges and a much higher number of court staff are deeply corrupt. Corruption is thus one of the reasons for delay in India, which cannot be dealt with by merely increasing judges.

Excessive adjournments and delays

Equally worrisome is the laxity with which judges and lawyers demand and arrange for extension of time between hearings. Delay in court proceedings has thus far remained a subject of public concern and as a topic about which some judges speak about once in a while. Indian lawyers however, have never raised this as a concern affecting their professional integrity. Instead, the Bar has exploited court delays to continue milking clients. Unless Indian lawyers consider it their unique responsibility to speak about this shame, court delays will never end. Even if 70,000 additional judges are appointed, all of them will have to face lawyers that repeatedly and shamelessly request and obtain adjournments.

Furthermore, a large number of cases pending before Indian courts are those in which the ‘state’ is involved. And precisely due to this, the procedure gets delayed for years, since in most of these cases the state refuses to reply to the court, or neglects its responsibility as a responsible litigant.

State as a party in litigations

Additionally, there are also cases where the presiding judge, due to appallingly poor intellect, either gets the state roped into a lis where it should not be a party to in the first place, or simply fails to render a decision and quotes the state’s irresponsibility as the reason for the delay. When a criminal complaint is filed against a state agent, in the instance of a complaint of custodial rape or torture made against a police officer, the norm in India is that the Judge directs the matter to the state, seeking ‘sanction to prosecute’.

This is an erroneous interpretation of law, which the Supreme Court of India has at least on two separate occasions clarified. The settled position of law is that no prior sanction is required to proceed with the prosecution of a police officer who has committed a crime, irrespective of whether the officer was on duty or not. Yet, a large number of lower and high court judges do not practice it. The defence lawyers exploit the opportunity, and indeed the ‘sanction to prosecute’ never arrives. Of the millions of cases pending disposal in India, a substantial number are of this nature.

Frivolous litigation and fabricated charges by the police

Another area of concern that cannot be addressed by an increase in the number of judges, is the quality of the cases filed in Indian courts. The single largest litigant in Indian courts is the Indian state. The number of fabricated charges that are levelled against innocent persons by the police and the frivolous litigation in courts is the largest source from which the judiciary receives inward files. A cursory glance of the trial courts across the country will prove this.

There is no mechanism of accountability in place in India’s policing system that prevents police officers from fabricating charges against persons. The Asian Human Rights Commission knows from its sources that there are an estimated 700 and perhaps even more fabricated criminal cases filed against grass-roots human rights activists in Odisha, who are engaged against the setting up of the POSCO steel plant.

These cases are just within the jurisdiction of one or two magistrates. A similar number, more or less, could be cited in relation to any other people’s struggle in India. All these cases will eventually end up in acquittal. But by then, the accused in each of these cases might have spent a decade or perhaps more in court verandas, with the cases contributing to the existing congestion of the system.

Frivolous litigation is routinely used in India as a means to protract legitimate proceedings, to deny rights, or to impart punishment. The Indian judiciary is yet to identify a sensible and justifiable means with which it can prevent or punish frivolous litigation. In fact, the high number of frivolous litigations is an undeniable symptom of a failed justice architecture. When due process is used to maliciously bother a person, it speaks about the respect people attribute to the process. A failed justice architecture allows malicious manipulations. And delay in court proceedings is one reason why such malicious practices are possible. Unfortunately, a mere increase in the number of judges cannot address this. What is required is a policy to be formulated and meticulously followed by judges that could prevent misuse of due process.

The low number of judges in India no doubt affects delays in due process, and must be addressed. To believe however, that the number of judges alone is the cause for delay, speaks to how little thought has gone into truly understanding the quagmire that is India’s justice system.

If ensuring justice is a genuine concern, one has to see beyond the numbers game. A call to increase the number of judges is indeed a beginning; it must not be the end though. What is required is a thorough overhaul of the existing system, taking in its sweep the police, the prosecution, the judiciary and the existing laws. Only an overhauling of such a nature can restore the common person’s trust in India’s justice process.