If the police cannot control crime, the top police officers are held responsible. If a company performs badly, its managing director would be held accountable. If the judiciary fails to deliver meaningful justice in a reasonable time, we try and find reasons everywhere except within the judiciary. There is a need to look at the problem with some logical and mathematical rigour, instead of merely repeating the myth that all faults in the nation must be ascribed to the politician and government. The anguish of Chief Justice of India T.S. Thakur should lead us to attempt to really understand the problem and find a solution. Instead, random statements have been made that India must have at least two to four times the current sanctioned strength of judges.
The government is considering fast-track special courts for commercial disputes. This shows scant concern for the poor who may be innocent but are rotting in prisons as undertrials. The entire talk of fast-tracking certain cases implies pushing someone else back. The unfortunate part is that the nation is not horrified at this suggestion, which would imply violating Article 14 of our Constitution within our temples of justice.
There are many myths about judicial backlog. One quote that is commonly bandied about is that of Justice V.V. Rao of the Andhra Pradesh High Court, who made a famous statement in 2010 that it would take the Indian courts 320 years to clear the backlog. This statement was made without the support of any calculations, and has come to be accepted as true although it has no rational basis. It is widely accepted that a dysfunctional judicial delivery system is a serious impediment to establishing the rule of law in our nation. Most solutions either require the courts to drastically change the way in which they work or appear to suggest that the problem cannot be solved as Justice Rao had done. Several studies undertaken to understand the problem have been without a sound basis or validation.
I have studied the data from the Supreme Court’s website, and if one understands it rationally, it can be eye-opening. Analysing this data leads one to the conclusion that a simple and doable solution stares us in the face. First, it destroys the myth that the backlog is growing at a rapid pace. The total number of pending cases each year on January 1, 2009-14 were 303, 314, 319, 315, 316, and 322 lakh. This shows that the backlog is not growing at a galloping pace as is commonly believed. To appreciate these figures, we must also understand that each year, about 200 lakh cases are instituted and around the same number of cases is being disposed. The increase in backlog over this six-year period is just 19 lakh, or about 3 lakh per year. This would represent just about a 1.5 per cent increase per year.
In 2014, the Law Commission, perhaps for the first time, looked at this problem using data. They took the average number of cases decided by each judge and reasoned that if an increase was made in the number of judges, these additional judges would also dispose of cases at the same average rate. This was the first rational attempt to arrive at the number of judges required to overcome the problem of case pendency. They came to the conclusion that a very significant increase would have to be made in the number of judges, since they made an assumption that the backlog should be cleared in a maximum of three years. This is flawed. There is no logic why the backlog that we have built up over decades cannot be cleared at a slower pace.
It is significant that over this entire period, there was not one instance of all the judicial posts being filled. The average vacancy in the Supreme Court, high courts and lower courts is about 10, 30 and 20 per cent, respectively. If we assume an average of 20 per cent, it is reasonable to conjecture that those who occupy these positions are likely to dispose of about 20 per cent more cases each year. This is the same logic that was used by the Law Commission. The increase in backlog of about 1.5 per cent each year would easily be taken care of and the pending cases would keep reducing each year. The number of sanctioned judicial positions is adequate, but these are not filled.
One argument for not filling the sanctioned positions that is proffered is that it is not possible to find good judges. The total number of sanctioned positions was 21,542 in September 2015. If anyone says that 22,000 good and suitable people cannot be found to take up judges’ positions in India, it insults the nation. If this position is taken, we will have to give up on this nation and stop talking of increasing the strength of judges. Perhaps this is the result of a lack of analysis of the problem. This is an issue for which both the judiciary and the government must take responsibility. Just one example will illustrate this point. Though there are 462 vacancies for high court judges, only 170 names have been recommended by the collegium. While the government is rightly being blamed for not accepting the names expeditiously, we are not questioning why names for the remaining positions have not been selected. If the judiciary wishes to shift the blame to the government, it would not be right. Recently, the Supreme Court ordered the government to appoint information commissioners to fill up the vacancies in the sanctioned strength.
After ordering the government to fill all vacancies in the Central Information Commission, there cannot be any justification for the judiciary not to take up the cause of filling all judicial positions.
The judiciary and the government must immediately address this issue if they are really concerned for the nation. Hopefully, the CJI will take up the issue of filling all vacancies within six months, and haul up anyone who obstructs this project.