Start from the top

To set an example for the judiciary, the Supreme Court must address its own backlog of cases.

Written by Bibek Debroy | Published:November 10, 2016 12:05 am
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As of March 2016, 27.7 million cases are pending in district and subordinate courts. This is a stock. During the January-March quarter, there were five million new cases and 4.5 million cases were disposed of. If new cases exceed the number disposed of, the stock of backlog increases (there are variations across states and in some states, disposal is more than institution). With 3.9 million cases pending, the story isn’t that different for high courts. There were around 4,50,000 new cases and around 4,35,000 cases were disposed of. The Supreme Court contributed almost 60,000 cases to backlog/pendency, with institution at a little more than 20,000 and disposal a little less than 20,000. If you add backlog numbers across all three tiers of courts, the figure is almost 33 million. I haven’t seen any credible figures on backlog across all quasi-judicial forums, like tribunals. Adding those, the backlog may well approach 40 million. There are around 2,50,000 households in India. A former Chief Justice of India (CJI), Justice Venkatachaliah, dramatised the situation and once told me the following. Each case has two parties. Therefore, there are 80 million litigants. Roughly, every third household is busy litigating. Admittedly, there is simplification in this dramatisation. But it illustrates the point that an efficient dispute resolution mechanism is in everyone’s interest. It is variously suggested that gypsies originated in India and there is a gypsy curse: “May you have a dispute in which you are in the right.”

“Unless a court can start with a reasonably clean slate, improvement of methods is likely to merely tantalise. The existence of a mass of arrears takes the heart out of a presiding officer. He can hardly be expected to take a strong interest in preliminaries, when he knows that the hearing of the evidence and the decision will not be by him but by his successor after his transfer. So long as such arrears exist, there is a temptation to which many presiding officers succumb, to hold back the heavier contested suits and devote attention to the lighter ones. The turn-out of decisions in contested suits is thus maintained somewhere near the figure of institutions, while the really difficult work is pushed further into the background.” This is a very apt description, but you may not know where the quote is from. It is from the report of a committee set up to “enquire into the operation and effects of the substantive and adjective law, whether enacted or otherwise, followed by the courts in India in the disposal of civil suits, appeals, applications for revision and other civil litigation.” This committee was the Rankin Committee. It was set up in 1924 and submitted a report in 1925. Justice Rankin was from the Calcutta High Court.

I can cite many other committees — High Court Arrears Committee (1949), Shah Committee (1969), Trevor Harris Committee in West Bengal (1949), Wanchoo Committee in Uttar Pradesh (1950), Satish Chandra Committee (1986) and Arrears Committee (1989-90). I can quote from these reports. Conceptually, their recommendations are of three types: Supply-side (more courts/judges); productivity (better procedures, work norms, shift systems); and demand-side (alternative dispute resolution, curb on government litigation). Former and incumbent CJIs have been daunted by the big picture and have wept. Did you know that in 1990, a suit of contempt of court was filed against former CJI, Justice Venkatramaih, when he gave an interview to a newspaper and commented unfavourably on the judiciary? (the petition was dismissed) The big picture is overwhelming, but let’s focus on the small picture — what the Supreme Court can do on its own, in the Supreme Court. There is no better place to demonstrate reform intent. Here are some backlog numbers for the SC — 771 in 1950, 23,092 in 1978, more than 100,000 in 1983, 134,221 in 1991 and 19,806 in 1998. That remarkable decline in backlog was then attributed to IT use and better case management (there was some statistical rejigging). The backlog climbed to 34,481 in 2005, 54,562 in 2010 and 59,595 in 2016.

As citizens, we aren’t supposed to possess expertise about how the backlog in the SC can be reduced. That’s for the courts to decide. We see the following. First, despite six vacancies, the number of Supreme Court judges has steadily increased since 1950. There doesn’t seem to be a great supply-side issue. Second, the Supreme Court’s website states, “Out of the 59,595 pending matters as on 31-03-2016, if connected matters are excluded, the pendency is only of 34,562 matters as on 31-03-2016.” Indeed, that seems to be the bunching of cases, specialisation and “productivity” improvement attempted in the 1990s. Why can’t it be replicated now? Third, the Supreme Court has original, appellate and advisory jurisdiction, but advisory jurisdiction isn’t that important quantitatively.

Since backlog reduction in the Supreme Court is probably primarily a function of demand management, should it hear so many original and appellate petitions? Legal systems vary and procedures can’t be imported. Even then, on appeals, the US Supreme Court receives 7,000 to 8,000 petitions a year and hears (for oral evidence) 80. This is around one per cent. There are serious data issues. However, a comprehensive paper by Nick Robinson found the Indian Supreme Court accepts between 15 per cent and 26 per cent of petitions(the exact figure depends on the year, let’s say an average of 20 per cent). This is too high and represents a hollowing out of the lower judiciary. Instead, once the Supreme Court has established precedence, it should be the reverse.

The writer is member, Niti Aayog. Views are personal