The popular narrative regarding delays in India’s district courts has been one of resource crunch. As per this narrative, an inadequate number of judges and insufficient funding are responsible for the sorry state of affairs. Fix these, and the problem of judicial delays would be solved, we are told. But these claims need closer scrutiny.
Proponents of this narrative often cite a shortage of anywhere between 5,000 judges to 70,000 judges at the level of district courts. The claim that India is short of 70,000 judges, when the sanctioned strength of the district judiciary is currently at 25,771 judges, is based on a thoroughly discredited methodology of calculating the required number of judges as per the population of the country. Despite three expert committee reports discrediting this methodology, it continues to be cited quite frequently.
On the issue of judicial vacancies at the level of the district judiciary — the most recent data provided to Parliament keeps it at 5,292 judges — more context is required. To begin with, the sanctioned strength of the district judiciary has tripled since the late 1980s, from 7,675 to 25,771 judges. Thus, even though there are vacancies, the overall number of judges has expanded. More importantly, a significant volume of complex litigation has been transferred from the dockets of the district courts to institutions like the Debt Recovery Tribunal (DRT), National Company Law Tribunal (NCLT) and consumer forums.
Similarly, on the issue of underfunding for the judiciary, critics often overlook the substantial allocations made by the Union Government in the last two decades — more than Rs. 12,000 crore — to improve the physical and digital infrastructure of the district courts. In addition, the 13th Finance Commission had recommended a grant of Rs. 5,000 crore for the judiciary, most of which remained unspent. These are substantial numbers given that India has around 20,000 judges staffing the district courts across India.
Long story short, despite substantially increasing the number of judges and funding, while diverting cases to new judicial forums, the delay in the disposal of cases before district courts remains a consistent problem. Against this backdrop, we would like to offer a new theory to explain judicial delays before the district courts. Our theory has three components.
The first component is the manner in which the High Courts discipline the judges staffing the district courts. Unlike the judges of the Supreme Court and High Courts, who can be impeached only by Parliament on grounds of misbehaviour or incapacity, judges of the district courts are subject to the same disciplinary rules as the civil bureaucracy in the state. The only difference is that these disciplinary rules are administered by the judges of the High Courts instead of the state government. The track record of High Courts in conducting disciplinary inquiries into the conduct of judges is woeful. There have been cases where district judges have been dismissed for being too generous in granting compensation in land acquisition cases or granting bail too frequently, despite no evidence of bribery or other misconduct. Simply put, judges of the district courts are being disciplined for perceived legal errors. This does not happen anywhere else in the world since legal errors are meant to be corrected via the appellate courts.
Even when there are allegations of misconduct, such as corruption or bribery, the inquiries have a certain Kafkaesque flavour since the HCs regularly permit hearsay evidence by witnesses with no personal knowledge. As a result, there have been cases, like that of District Judge K Ganesan, who was dismissed from the judicial service based solely on rumours and gossip. Dismissing a review petition filed by the Judge, the Madras High Court ruled, quite astonishingly, that charges of bribery cannot be ignored even in the absence of “direct evidence” since finding “direct evidence is a Herculean task.”
That these disciplinary inquiries are conducted behind closed doors, with HCs refusing to disclose inquiry reports under the RTI Act even after proceedings are concluded, does little to build confidence in the system. The result of such a Kafkaesque disciplinary framework is that it compromises the ability of district judges to decide cases freely without worrying about a backlash in the form of an opaque and unfair disciplinary inquiry. This worry then translates into a reluctance to hear cases perceived as “risky”, or alternatively, they may hesitate to grant certain risky remedies like bail in controversial cases.
The second component is how HCs assess the performance of the district judiciary. Each HC has devised a “unit system”, which lays down certain disposal targets for judges of the district judiciary. Under this system, judges are expected to decide a certain number of cases in a quarter or a year, and in addition, they are also awarded a predetermined number of “units” for each judicial task they complete towards disposing of a case. The number of units then contributes to their overall rating for the year, which in turn can determine their promotions, postings and whether they can be “compulsorily retired”, without cause, when they cross certain milestone ages.
One of the many problems with this “unit” based system is that it does not factor in time or complexity of different judicial tasks. For example, a judge gets the same number of units for presiding over a cross-examination of a witness, no matter the time spent on the cross-examination. Similarly, a judge gets the same number of units for the disposal of a certain category of cases regardless of the complexity of individual cases within that category. The inevitable result of such a performance system based on quantifying work is that it can be easily gamed by judges, who now have an incentive to pick and choose easy cases in order to meet their targets, at the expense of delaying complicated or risky cases.
The third component is the phenomenon of the “revolving docket”. Unlike in most other countries, where a case remains on the docket of a single judge, the district judiciary has a revolving docket due to a policy of transfer of judges within states and also within districts. This policy ensures that a case revolves between dockets of different judges since cases remain in the same court while judges get transferred. This “revolving docket” increases inefficiencies as cases remain partially heard, while also letting the judges pick and choose the easiest cases in order to avoid disciplinary inquiries and earn “units” necessary to secure a good rating. As long as the “revolving docket” exists, it will be impossible to hold any single judge accountable for delays in disposing of a case.
Reorienting the public debate on reforms to these issues of judicial governance and away from the resource crunch narrative will be crucial in tackling the root of the problem of delays in India’s district courts.
The writers are lawyers. Tareekh Pe Justice: Reforms for India’s District Courts is their latest book
