Let’s not throw the baby out

The backlog figures are horrendous. The backlog is around 40,000 in the SC, 3.7 million in the high courts and 25 million in subordinate courts. The backlog depends on the speed of disposal and institution of new cases. There is a back-of-the-envelope figure that floats around. If there are absolutely no new cases, it will take 124 years to clear the backlog. How does one clear it? That’s a complicated jigsaw, but if one goes by the SC’s arguments, the judiciary has a major role to play. For instance, if vacations are reduced, that’s de facto an increase in number of judges by 25 per cent. Or with the same number of judges, IT-usage can increase productivity. Moses’ father-in-law, Jethro, put his figure on something else. Exodus, Chapter 18. When Moses returned with the Ten Commandments, “the people stood by Moses from the morning unto the evening”. In today’s jargon, Jethro said, if you are going to be the only judge, delay won’t decline. Have more judges/ courts. The earliest government-committee was a Rankin Committee Report, from 1924, and it focused on delays in civil courts. The single-most important constraint identified was shortage of judges. Since then there has been a succession of reports: High Court Arrears Committees in 1949 and 1972, several Law Commission Reports, an Estimates Committee in 1986, a Satish Chandra Committee in 1986 and another Arrears Committee in 1990. More judges and courts again. In 1987, there was a recommendation that the number of judges per million should increase from anything between 10 and 13 now (depending on the year) to 50 (the world average is around 64). In 2004, there was a recommendation that the judge/case ratio should be 500 to 600 for lower courts. That requires 35,000 courts, as against the present figure of around 12,000.

Can the judiciary alone solve this problem, by increasing sanctioned posts? Around 20 per cent of positions in the lower courts are vacant while around 25 per cent are vacant in high courts. The judiciary is at best culpable, that too partly, for not filling them. But it can do precious little about increasing the number of judges/courts, or ensuring that judges are not hauled off to act as chairpersons of assorted commissions. The SC’s fourth point about lack of expertise in judges is also related. How many degrees of freedom does the judiciary have to increase incentives to attract better judges, especially for lower courts?

In 2005, the then President of India addressed an all-India seminar on judicial reforms and identified the main reasons for delays as (a) inadequate number of courts; (b) inadequate number of judicial officers; (c) ill-equipped judicial officers; (d) dilatory tactics by lawyers and litigants; (e) role of court administrative staff. Barring (e), once the judiciary takes its mind off judicial activism (including PILs), how many of these constraints will be eased?

In 2005, an ADB survey found 43 per cent of adjournments were due to litigants and their legal representatives. The point is simple. In a non-inquisitorial system, judges are even more constrained to follow procedures. That requires amendments in substantive law. The Civil Procedure Code may have been amended in 2001/2002. But two-thirds of them are criminal cases, concentrated in lower courts. Whatever has happened to criminal justice reform? When did you last hear of the Malimath Committee? One doesn’t have to agree with its recommendations, but let’s debate them. While on such reform, when did you last hear of police reform? There were commissions/committees in 1979-81, 1996 and 2000? Two-thirds of civil cases involve government as the litigant. In 1997 it was decided government vs govt cases should not end in court. Why wasn’t that implemented?

On the SC’s second point the argument is only partly true in a common law jurisdiction. While lower courts don’t create law, high courts and the SC do. That’s how judicial activism and PILs emerged. PILs may have overcrowded the courts and there have been frivolous ones too . However, PILs have done a lot of good — also for the poor. People will now say the baby has been thrown out with the bathwater. Because of the origins of the phrase, this is most apt. The baby was bathed after everyone else had a bath and the water was therefore dirty and was thrown out — usually through the window. If the baby stands for judicial activism, it is indeed floating around in a lot of dirty water. We haven’t thrown out the dirty water. We have thrown out only the baby.

True, citizens should throw out a non-performing legislature and executive. The word PPP has become popular not because of purchasing power parity, but because of ‘pathetic policy paralysis’, characterising both Constitutional organs. If people haven’t become completely cynical, that’s largely because of the judiciary. Yes, there have been instances of overreach. But that doesn’t warrant the turtle’s reaction of withdrawing into its shell.

The writer is a noted economist bdebroy@cprindia.org