REFORMS IN THE ADMINISTRATION OF JUSTICE: “BEATING THE BACKLOG”
It is a great pleasure and a special privilege to be present with you in Manipur on the 25th Birthday of the Bar Association. There are many firsts, some ironies and a few mysteries regarding this function. My visit to Manipur is a first for me and the dual attraction of seeing your beautiful state and interacting with the Bar was compelling and irresistible. A chamber Junior of mine for many years is a Manipuri and I therefore keep getting stray and piecemeal tidbits of information about both your state as also the High Court and the Bar, which has constantly aroused my curiosity about this lovely State. Secondly, I am still trying to unravel the mystery of the 1972 to 1990 years when, despite the start of the Imphal bench in 1972, a separate High Court Bar Association was established as late as 1990. Thirdly, there is the irony that this is both an old and a young High Court with a middle aged Bar Association. Though the circuit Bench started here in 1972, the permanent bench was inaugurated only in March, 1992 while the regular High Court is only 32 Months old (23.3.2013). Hence the bar Association born in 1990 can be described as middle aged!
As a keynote speaker dealing with reform, my first dilemma is which key to strike and which note to play. This dilemma is linked to Gandhiji’s description of every good reform movement as passing through “five stages; indifference; ridicule; abuse; repression; and respect”. The topic of judicial reform is humongous and encompasses an amazing diversity of issues impossible to encapsulate in any single address. I must therefore necessarily play the role of a fan dancer viz touching upon the subject without really covering it. Hence the keys in my keynote would have to be partial, selective and limited.
Secondly my notes in the key note, following Gandhiji’s sage counsel will have to be candid, jarring, blunt & somewhat impolite. As Nani Palkivala put it: “words must be an assault on the senses”, if change has to be effected and progress achieved. Hence, those of you looking for sonorous harmony will find it missing from my notes, especially since I am prepared for “indifference, ridicule, abuse & repression.”
Despite having spoken on innumerable occasions and at diverse fora on this subject--from the Chagla Memorial Lecture in Mumbai on 1st Jan, 2007, the Rajendra Mehta Memorial Lecture, at Jodhpur on February 26th, 2012, the Tenth Annual Conference on India at the Standford Centre in USA, on October, 2009, the First Ghanshyam Memorial Lecture at NLU, Delhi, in 2011, the Dispute resolution conclave at Delhi in 2014 and the Bar Council of India, Vigyan Bhawan function on 16th February, 2013--- I continue to be awestruck by the enormous inefficiencies and tardiness of the Indian legal system which, ironically, is matched only by the remarkable simplicity of the solutions available to eliminate the problem. India’s tragedy is that the latter is not applied to the former, to achieve solutions which are so near and so easy and yet so far.
A few more preliminary points before I come to the heart of the matter.
The first is the inexplicable anomaly that administration of justice is still not a taught subject in the overwhelming majority of our 3 and 5 year course curricula. Sensitizing and educating young minds on the real causes of the problem and the relatively easy solutions available would be a simple but significant step in the right direction.
Secondly, the scourge of backlog can be met only by less talk and more action; by less lectures and more implementation; by less legislation and more ground achievement. Neither the problem nor the solutions are new: what is required is consistency of application, focus of will and determination, diversity of panaceas and uninterrupted bombardment of the problem with nitty-gritty solutions.
Thirdly, the mammoth numbers of arrears thrown at us should be neither a deterrent nor a depressant: seen closely, they are but meaningless figures which can reduce and fall dramatically and exponentially like a pack of cards, if attacked at the core.
Fourthly, Thomas Hardy’s admonition “if we take care of the small things; the big things will take care of themselves”, applies directly to the arrears problem. Grand mega plans must give way to common sense, nitty-gritty and simple solutions.
Fifthly, the approach has to be holistic, not piecemeal, multi-pronged not partial, curative as also preventive.
Sixthly, it has to be surgical, somewhat bold, unconventional and even shocking, to electrify us, to jolt us out of our somnolence because while the present system helps no one, it chugs along because of the inherent inertia of the system itself and because everyone either takes it for granted or considers the problem too awesome to address. It is thus time to be blunt, not diplomatic. In all this, we cannot and should never underestimate the importance of attitudinal change. This may be the most nebulous, the most unquantifiable, the most non specific factor but it is nevertheless the most vital. The trick is to embed the ethic of legal reform and ADR in the psyche and bloodstream of the principal dramatis personae of this system. During the early 1990s, even the Supreme Court had a tangible& not insubstantial arrears problem: the degree of indiscipline was larger, the Registry was much more disorganized and adjournments were a matter of course. During my involvement with the 1993 Justice Ahmadi case management & ADR project2, I found that simple procedural changes slowly brought about a sea change in attitude amongst all the actors at the Supreme court—judges, lawyers, registry officials, litigants and so on. By 1997, all had developed a vested interest in ensuring that the system functioned efficiently. That attitudinal change happily persists to this day but, clearly, a tectonic attitudinal shift had then taken place in comparison to the early 1990s and earlier. As is rightly said “Attitude, not aptitude, determines altitude i.e. how high you soar.”
Finally, the importance of teamwork cannot be underemphasized. In the war on arrears, the entire judiciary, indeed the entire legal system, has to function as a seamless web, an indivisible whole. The role of judges and the judiciary as a whole, but most particularly of the apex court, is vital—as a catalyst, as an organizer, as a facilitator, as a monitor, as an umpire, as a participant, as an observer and, at the apex level, as a role model. They have to lead by example. They are mentors. They have to enthuse by spirit, reinvent by conduct.
Leaving these preliminary, general but vital points & turning to substantive issues, the first substantive issue illustrates how laughably obvious the problem is and how elementary its solution. It is the problem of simultaneously talking of above 3 crore case arrears, being aware of the enormous judicial vacancies and yet being unable to do anything about it. As on November 1, 2015 the approved judicial strength of all the 24 High Courts put together was 1017. Of these only 609 posts stood filled and 408 vacancies amounted to 40.11 percent of India’s High Court posts having no judge. How can we or any country keep creating hospitals without doctors or ICU beds without specialists and yet complain about dying patients? Probing these figures a little more would yield comic results were they are not tragic for the Country. Over 50 percent of the 160 posts in India’s largest High court, Allahabad, are vacant for many months. Remember, Uttar Pradesh’s population is many times higher then the whole of Europe put together! 33 out of 85 High court posts in Punjab and Haryana High Court, serving two states and one UT, are vacant. 33 out of 94 posts in India’s premier High Court, Bombay, are vacant and 21 out of 60 in India’s Capital are similarly vacant. Just under 50 percent (23 out of 53) are vacant in one of India’s largest geographical state, M.P and exactly 50 percent (25 out of 50) in my home state of Rajasthan. Karnataka displays its splendor with 31 out of 62 posts vacant.
In one sense, small states with a small designated strength are worse off since they cannot afford even one vacancy. Sikkim has 1 out of 3 posts vacant, Uttrakhand has 5 out of 11 vacant, Himachal has 6 out of 13 vacant and Chhattisgarh has 13 out of 22 vacant whereas J&K has 7 out of 17 vacant. Where Judges are already few on sanctioned posts emaciated numbers can bring the High Court to a standstill. It would be almost Orwellian and comical, if it were not tragic, that some years ago we increased the sanctioned strength of almost all our High Courts significantly, but till date even the original unincreased (i.e. original sanctioned) strength invariably goes unfilled for months!
The position is no better at the District and lower court levels. In October, 2015 with over 2.7 crore cases, about 3300 vacancies against a sanctioned strength of 17,715 in the lower judiciary languished in vacancy3. To this, we must add the larger perspective that a country of 125 crore plus people of which atleast 20 percent can be counted as litigants or potential litigants, India has one of the world’s lowest and most woefully inadequate judges-per-million-of- population-ratio. In 1987, we had 10.5 judges per million of population. In 1987 itself, the Law Commission strongly recommended an increase to 50 judges per million of population by 2000. This was repeated by the Supreme Court in the All India Judges Association Case in 20024 .
The fault must lie largely with the judicial organ and partially with the executive. The judiciary cannot have it both ways. Having appropriated to itself the appointment power, admittedly without textual sanction in the Constitution, and having reiterated that appropriation of power a few weeks ago in the NJAC judgment5, it becomes the bounden duty of the judicial family as a whole, especially at the Apex court and High court levels, to ensure that what has been made the exclusive preserve of the judiciary brooks absolutely no delay in filling vacancies. It is astonishing that till date a simple flow chart/time chart is not mandatorily laid down as a binding protocol for High Courts and the Supreme Court by the apex Court itself, to ensure that movement of files at each level of the judicial appointments process is monitored by a judge in each court and does not exceed the stipulated time period for each rung of the ladder. A judicial vacancy is known from inception since every judge’s retirement date is predetermined. This Flow chart must be made in a manner so as to have the notification for the new appointee issued at least one month prior to the retirement of the incumbent. The flow chart time lines must apply equally to the executive and a prompt reiteration by the collegium will, I have no doubt, result in immediate and compulsory notification by the executive. Laments and blame game between the executive and judiciary in this regard are irrelevant and inexcusable & no excuses would suffice since the power of appointment is now overwhelmingly if not solely with the judiciary. The delay in filling up sanctioned strength vacancies is usually attributable to the selection process, to internal ego problems, to procedural delays and to file movements–none of which are insuperable. A core group for the High Court and for the subordinate courts to monitor the movement on such issues must also be constituted and can achieve dramatic results. The sad truth in India is that most of us, whether part of the legal system or complete strangers/ outsiders, if tasked with the obligation of finding the best 5/10 advocates suitable for judgeship in each of our High Courts, would be able to do so in one month of concentrated search and analysis. Unfortunately, having found such suitable names, we then start a dangerous cocktail of local Bar politics, judicial politics, personal rivalry, petty egos and the like, resulting either in inordinate delay, ensuring withdrawal of the candidate’s name after ruining his practice or sabotaging his appointment as also his fair name & reputation.
Though not strictly within the scope of today’s theme, a word about a simple change in the Collegium’s evaluation process would be in order. Much of the personal subjectivity, ego & petty politics which are a sad & undeniable truth of the Collegium process would be eliminated, or at least considerably reduced, if a uniform marking/evaluation sheet system is followed, at both High Court & apex Court levels. For example, all Collegium members should be required to mark all potential appointees/promotees on four uniform criteria, which, purely illustratively, could be quality of judgements, integrity, success at bar, demeanour/accuracy/ reliability etc. A modified list could be applied to Bar appointees, since, obviously, they would have no judgements to show. The headings & nature of each criteria can be tweaked by the judges of the Collegium. So can each individual weightage. That is not the point. The point is simply that non availability of uniform criteria allows subjectivity, personal animosity & anecdotal aberrations to flourish. It also precludes uniformity and comparisons, both inter generationally & temporally, and, most seriously, undermines consistency completely. If we apply such simple techniques to selections of chaprasis, to students, to employees and to other top positions, why should Collegium appointments be exempt from this logical, consistent & transparent process. Indeed, such evaluation marking sheets should be preserved for future scrutiny & judicial review, howsoever limited or restricted internally or circumscribed the apex Court wants to make it. At least a record would make things much, much more transparent, consistent, logical, analytical & sensible. One can only ascribe status quoism & a fear of the unknown or, worse, an attempt to preserve incestuous, closed decision making, if such obvious and simple changes are not effected even during the current ongoing reform process.
A recent example illustrates the lack of foresight and planning in regard to the pressing need for prompt, regular and periodic judicial appointments as per full sanctioned strength. Both the judiciary and the executive should have planned well in advance about the predictable delay likely to ensue in the constitutional skirmish about the NJAC. One may be for or against the NJAC. That is irrelevant. It was the bounden duty of all stakeholders to ensure that this skirmish did not result in a most unaffordable standstill on judicial appointments while intellectual arguments regarding NJAC were raging for months. A pragmatic solution ought to have been found out in advance. The only logical solution would necessarily have to be a continuance of the old collegium system till a final decision. There is no excuse for the Collegium not being made to meet in this transitional period. Combining the period from the start of the NJAC challenge to the post verdict invitation of suggestions by the apex court Constitution Bench, India would easily have lost over nine months, possibly a whole year, with virtually no appointments in 24 High Courts! Can India afford this? And amidst all our wise intellectual flights, who will share blame for lack of this elementary planning?
Turning to a Second issue, we have stop this strange and sorry spectacle that on the one hand we keep on lamenting about of lack infrastructure, lack of funding, lack of allocation, etc and on the other hand over 80 percent of funds allocated for specific/special judicial purposes remain unutilized. There is no doubt that the planned allocation for judicial infrastructure is abysmally low, being 0.071 percent of the Ninth plan (1997-2002) & 0.078 percent of the Tenth plan (2002-2007). Yet the following table published in March, 2015 is telling and tragic. It shows that of the specific fund allocation of Rs 5000 crore by the 13th Finance Commission for diverse judicial objects like morning and evening courts, ADR centres, Lok Adalats, Legal Aid, Judicial Academy etc, the highest utilization out of the allocations was well below 50 percent and in most cases 60, 70, and 80 percent of the funds allocated remained unutilized in the period 2010 to 2015. The relevant figures are given below.
Fund allocation by 13th Finance commission for 2010-15 (Cr)6
|Local adalat & Legal aid||300||65|
|Training of judges||400||157|
This is inexcusable and explodes the myth of a underfunded judiciary. It is a little heartening that Budget 2015-16 has increased allocation for judiciary significantly, from Rs 1931.53 crore in the last budget to over Rs 3500 cr. Perhaps part of the repeated lament of former Chief Justices would be met with this necessary increase.
Thirdly, we have also hardly used the constitutional power to have a large additional number of ad hoc judges under article 224 A of the Constitution to work for five years or more till the backlog, especially of any identified class of cases is cleared. The provision for ad hoc judges--to be appointed by the Chief Justice with the consent of the Central Government provided he has been a judge of that or any other High Court--has one great advantage over other forms of recruitment. It provides a ready made pool of known judicial talent, tried and tested, which can be relied upon to be competent, clean and efficient. Indeed, article 224A permits even retired judges from other High Courts to be appointed to any HC. This appears to have become a forgotten constitutional power, rarely used in the apex court & almost never at the High Court level, where it can be an effective weapon to deal with and dispose off old forgotten pending cases. This is particularly germane in the context of inordinately delayed fresh judicial appointments discussed in the preceding paragraphs. England, for centuries, has effectively used the system of Recorders at the lowest judicial rung. They are largely QCs (i.e Senior Advocates) who join the Bench at the lowest level for a limited period of two years and dispose of thousands of petty criminal and civil cases and then return to their practice.
Fourthly, we have to tailor and fine tune roster allocation according to movement of pending arrears. For example, as on 10th November, 20157 the total pending cases in all courts across India below the High Court level was 2.03 crore, of which criminal cases were just under 3 times the aggregate of civil cases viz. civil cases were 67.29 lakhs whereas criminal cases were 1.35 crore. Of these about 30 percent were 2 to 5 years old, almost 18 percent were 5 to 10 years old, 10 .4 percent were over 10 years old and the predominant bulk of over 41.8 percent were less than 2 years old.
Unfortunately, similar updated data is not available for all the 24 High Courts. As at end 2013, High Courts in the aggregate had 44 lakh odd pending cases. Of these, in direct contrast to the lower judiciary, an overwhelming 34.32 lacs comprised civil cases and 10.23 lacs were criminal. A pilot project by a Bangalore based Organisation, Daksh8, shows that a very small percentage of cases pending were older than 10 years and a small, manageable number were 5 to 10 years old while the bulk, expectedly, were pending for less than two years. It also revealed a case pending in Jharkhand High Court for 57 years. In my Chagla Memorial Lecture at Mumbai University in January, 20079, I had referred to a 1950 pendency in M.P High Court, a 1951 pendency in Patna High Court, a 1955 pendency in Kolkatta High Court and a 1956 pendency in Rajasthan. Hopefully, most of these do not continue to exist.
What conclusion does this statistical analysis yield? Firstly, Courts below the High Court must always have approximately 3 times the judges dealing with criminal case rosters as opposed to those dealing with civil cases. Secondly, this general principle must be further calibrated, modified and tailored as per individual districts and localities. Thirdly, the reverse is required to be done qua the High court where civil case arrears are exactly three times higher in number than criminal ones. Fourthly, both in districts, lower and high courts, there must be multiple tracks with one judge dealing with over 10 year old cases, another with only 2 to 5 year cases and the majority of judges with below 2 year old cases. Fifthly, a broad classification is useful, with one track dealing with over 2 year old cases and the other with current filings. This is the only way to keep ahead of the Battle of the Bulge and prevent regression of even the currently healthy high courts and districts court into the abyss of arrears. Lastly, given the relatively small proportion of over two year old cases, especially the very small number of those over 10 years old, there is no reason why each High Court cannot wipe off the ignominy of stray pendencies of the 1950s/60s by simply putting a special judicial track to wipe off such bad publicity in a few years through a concerted and sustained effort.
Fifthly, such micro monitoring, statistical analyses, weekly, monthly , quarterly, bi-annual and yearly charts containing statistical and detailed analyses, must be done in every high court, district court and lower courts by specially designated technical and managerial experts (as far as possible non lawyers) able to both collate and analyze relevant statistics at the ground level.
Information is the biggest weapon and for decades we have woefully and inexcusably underutilized it. Moreover this is something which should never be left to lawyers and judges but has to be entrusted to trained experts in specially created cells in each court complex and ultimately threaded together into one uniform national judicial grid. Just as the mechanics of war is sometimes too complex to be left to generals, law reform based on technical data and sophisticated computerized evaluation techniques is too serious to be left to lawyers and judges. In any event, the breath of fresh air brought in by young dynamic information technology and managerial experts who are outsiders to the system is far better than the incestuous vested interests of lawyers and judges which operate in each court at each level and are inevitable.
Sixthly, I know that much of the aforesaid is underway and the National judicial data grid, the Supreme Court website and several departments of judiciary websites have progressed in the aforesaid direction. But there are significant deficiencies, chiefly the absence of standardization and uniformity which is a serious drawback. Secondly, different high Courts revel, for reasons of legacy, history and heritage, use a bewildering diversity of nomenclatures and acronyms to describe the same thing. For example a writ petition is described differently in at least 10 High Courts, as would be different kinds of miscellaneous applications also. Standardization and uniformity in this regard , jettisoning individual or historical egos, is vital and urgently required. Interstate, intercountry, temporal and intergenerational comparative analysis is not possible without uniformity. Use of technology to analyze raw data is also predicated on the same assumption of uniformity.
Seventhly, it goes without saying that best practices of different HCs as indeed at the lower level, eclectically gathered together and made into a uniform all India protocol, must be followed by every High Court and lower court , and where applicable, even by the Apex court. The Law Ministry has frequently tried to compile a list of good practices followed by certain courts but institutional insularity has often prevented the uniform adoption of several salutary good practices. These includes simple and obvious panaceas like designating a special day in the week for disposal of older cases, daily, weekly, monthly and quarterly charts, monitoring case adjournments and reasons therefore circulated to each judge, follow up and some minimal but necessary generation of embarrassment to the judge concerned regarding low disposal, based upon charts in intra court meetings. Pre-trial conferences with the trial judge to ensure the ripeness of the case, followed by day to day disposal of cases, designated Saturday meetings between the advocates of both sides and the judge to freeze issues for focussed disposal, setting weekly, monthly and quarterly targets for speedy disposal and reviewing failure to achieve intended targets (e.g.Gujarat), lok adalats held on all working days for one hour before or after court hours and for the whole day on non working days (e.g Kolkatta ), adopting a sophisticated computerized case law management system monitored by managerial professionals under judicial supervision (e.g. Delhi) and so on and so forth are other obvious good practices but still found missing collectively and synergically in most Indian courts.
Eighthly, the overall approach has to be to keep moving aggressively towards the A, B, C, D of judicial reform. The A,B,C,D of judicial reforms are all interlinked since A stands for Access, B for backlog, C for cost and D for delay. Cause and effect are inextricably inter-twined in this paradigm: one feeds the other and constitutes both cause & effect. India’s unprecedented achievements in being the world’s most dynamic judicial system, having the world’s most activist judiciary, having invented remarkably revolutionary legal concepts like public interest litigation & the basic structure of the Constitution theory, having a vibrant & truly independent judiciary in the world’s largest democracy, having the world’s second largest legal fraternity (comprising the best and brightest of the world), are all unfortunately nullified when we are forced to confront the scourge and spectre of mountainous arrears of over 3.2 crores. No one likes to indict one’s own country but the following words are not mine. They are those of one of India’s most illustrious sons. About delay in litigation, Nani Palkivala had this to say:
“May I turn to the situation in India which has the second largest number of lawyers in the world? While it is true that justice should be blind, in our country it is also lame. It barely manages to hobble along. The law may or may not be an ass but in India it is a snail: it moves at a pace which would be regarded as unduly slow in a community of snails. A law suit, once started in India is the nearest thing to eternal life ever seen on this earth. Some have said that litigation in India is a form of fairly harmless entertainment. But, if so, it seems to be a very expensive way of keeping the citizenry amused. If litigation were to be included in the next Olympics, India would be quite certain of winning at least one gold medal.”
Ninthly, when we read this, we are reminded of the 1950, 1951 and 1955 pendencies which I mentioned above. But what is the anatomy and analysis of such pendencies, if we scratch and dig beneath the surface? A 2015 news report describes the pitiable case of a DTC bus conductor who was charged with charging 10 paisa instead of 15 paisa to a woman passenger in 1973. The Department recommended dismissal in 1976, the Labour Court took 14 years to reverse and recommended reinstatement with full back wages in 1990. In no civilized system would DTC or its counterpart have gone further but in India the DTC predictably challenged the Labour Court order in the Delhi High Court, which took another 18 years to throw out the DTC challenge in 2008. Undeterred and unrepentant, DTC filed a review petition in the Delhi High Court and refused, in the meanwhile, to either reinstate the bus conductor or pay him back wages or give him post retirement benefits ( since he had retired many years ago). I have no hesitation in saying that, most sadly, the Delhi High Court partly allowed the DTC review petition ordering the 70 year old Ranbir Singh to pay DTC Rs 1.42 in loss of revenue! The amount of Rs 1.42 is based on compounded interest on Rs. 00.05 that the defendant, in 1973, in his capacity as a conductor for DTC, undercharged a female customer. At the interest rate of 8.5% per annum, 5p would amount to Rs 1.42 today! Such verdicts encourage future aberrant behavior of public corporations who should never have appealed in the first place.
The facts and context of this case itself suggest the solution. Has anyone punished the relevant DTC official/s who keep taking decisions on the file to keep challenging each judicial loss? Indeed action deserved to be taken even against lawyers, law officers and other advisors for callously advising never ending challenges, making a youthful Ranbir Singh, the bus conductor, when the cases started into a over 75 years old wrecked victim today. Has anybody, DTC or the Labor Court Presiding Judge or the HC Chief Justice, examined the file to track why it took first 14 and then 18 years at the at the Labour Court and High Court levels? What is the purpose of handing Ranbir Singh a victory which was certainly deserved but entirely pyrrhic? What is it about India’s judicial system that makes a victim out of a victor? Why is there never any closure within any known reasonable time for most Indian legal proceedings? In fact, if analysis was to dig deeper, it would find post verdict trauma to be as bad if not worse than the multiple electric shocks suffered by a litigant during his passage through the multitiered Indian legal system. The case of Salman Khan, the actor, is a good example of continuing post verdict trauma. The actor was directed by the Bombay High Court in 2002 to pay Rs 19 lacs as compensation to certain deceased and injured in a drunken driving accident. The money was paid promptly by the actor. It was recently discovered, after 13 years, by the Bombay Division Bench that the money not been paid / disbursed to any of the victims or their families! Obviously this happens because there is no individual monitoring/case tracking. I can wager a bet that there is hardly any consequential penal action which will follow against errant officials culpable in such bizarre examples.
May I say in conclusion, that our entire perspective has to change. We have to see ourselves as a service industry & from the point of view of the litigant viz to use Gandhiji’s phrase, the customer has to be King. We cannot indefinitely continue to see the legal system from the point of view of the convenience & earning of the lawyer or the stature & pomposity of the judge. The litigant more often than not wails--”Dopahar tak bik Gaya bazaar Ka har ek jhooth, Aur main ek sach ko Lekar shaam tak baitha raha”. The legal family--judges, lawyers, academics, registry officials, litigants, parties--all have a contributory & historic role to play. They should all heed Iqbal’s warning before it is too late & effect real &meaningful ¬ cosmetic reform. Iqbal’s memorable words were:
“Ek khwab sa dekha tha, ta umr neend aayi; lamhon ne khata ki thi, sadiyon ne sazaa payi”. It is our bounden duty to collectively ensure that that does not happen. We owe it to India, to our children & to ourselves.