Judicial Backlogs Can Become History

The judicial system has become irrelevant for the common citizens, and this is responsible for many ills plaguing our Nation, like disrespect for laws and corruption. The ease of doing business also suffers and the rule of law cannot really prevail. The poor and marginalized are hit most in this state of affairs. Supreme Court judge Justice A M Khanwilkar acknowledges that at least 90 percent people give up their claim to justice. He added that there was only 10 to 15 percent citizens who have access to the justice system in India.

A common belief is that we should have three to four times the number of judges. Some people believe that this can change only if there are major judicial reforms, or judges do not give adjournments or forgo their vacations. Some advocate the drafting of better laws. These would require changing the attitudes of judges, lawyers and MPs and there is no sign of it happening. It would be very good if all this happens, but so far there is no sign of it. Former Chief Justice Thakur said that unless the sanctioned number of judges was increased by over three times,- 70000 judges,- justice could not be delivered. It appears to have been accepted that a judicial system which can deliver timebound justice is unlikely, and the fundamental right to Speedy Justice will be a mirage for India. It is a common argument that UN standards suggest 50 judges per million population, whereas India has less about 20. In 2017 if we assume a population of 1250 million the sanctioned judges were 19.1 judges per million.

^[1]. This would mean the queue would disappear and it would have been possible to devote adequate time to all cases without having to wait. In most cases it may be possible to dispose cases in less than 3 to 6 months. In Australia over 70% of the cases in the Magistrate's courts are decided within 13 weeks. The Law Commission analysis assumed that the complete backlog must be finished in 3 years and did not take the vacant judicial positions into account. Hence it came to the erroneous conclusion that the strength of the judiciary needs to be doubled.

^[2] This analysis has been done by adopting the same 'Rate of Disposal' method accepted by the Law Commission. The summary of this analysis is tabulated below^[3]. This shows that the number of sanctioned judges is adequate and if all the sanctioned judges were appointed mounting pendency and huge delays would be history.

The number of judges sanctioned in the three levels on 31 December 2017 was 31 in Supreme Court, 1079 in High Courts and 22704 in the Subordinate Courts.The actual number of judges appointed was 25, 676 and 17028 in the three levels. Thus the total number of sanctioned posts were 23814 whereas the working judges were only 17739! Filling about 6000 vacant positions can make the judicial system deliver efficiently. 

Another way of looking at this data for the twelve year period from 2006 to 2017:

	Supreme Court	High Courts	Lower Courts	Total	Average in Lacs per year
Pending cases 1 January 2006	34481	3518803	25654251	29209541
Average Percent vacancies	12%	32%	21%
Total Cases Instituted in 12 years	890431	21557774	215637519	238085724	198.4
Total cases Disposed	869453	19678034	211870845	232418332	193.7
Increase in pendency	20978	1879740	3766674	5667392	4.7
Missed disposal due to vacancies	120875	9540108	56478736	66139718	55.1
Balance Pending on 31 December 2017	55588	5398543	29420925	34875056
Balance Pending could have been	-65416	-4141565	-27057811	-31264791

The increase in pendency in twelve years was about 56 lac cases whereas the disposal missed due to not filling all sanctioned posts was nearly 661 lacs! The increase in cases each year is less than 2.5 % of the average number of cases instituted each year, whereas the average vacancy is about 21%!

I also assumed that an average vacancy upto 5% would have to be accepted in view of the overall inefficiency. If there was no vacancy the three levels would have a no backlogs in 2014, 2012 and 2012 respectively. With 5% vacancy the backlogs would have been completely eliminated by 2017, 2014 and 2014.

There can be no excuse for keeping judicial positions vacant while the nation suffers because of this neglect. The retirement date of judges is well known. It would be possible to factor in vacancies due to resignations, promotions and deaths by studying the past data. The increase of sanctioned positions can also be forecast early. The number of registered advocates is about 1.3 million and over 60 thousand graduates emerge each year from our law schools. Even if infrastructure is inadequate it would need to be augmented by only about 20%. Even if we assume that there would be a capital cost of setting up courtrooms this would not exceed about 3 crores per courthouse which would mean about 18000 crores only. This is a simple solution and can be implemented very easily. This does not assume any change in the way judges and lawyers function. It only assumes that the extra judges who fill the vacancies will also dispose matters at the same rate as those who are already in the system. While the sanctioned judicial positions are about 19.1 judges per million the actual working strength is only 13.9 judges per million population.

Surely it can be ensured that this process can always be started six to twelve months earlier and the Collegium recommendations are sent to the government three months before the vacancy occurs. There should be a similar approach for subordinate judges, of ensuring that the selection process is finished in advance.

For the sake of the nation all those responsible must ensure that all judicial appointments are made in a timely manner. An easy solution is available. This analysis suggests that if a simple process of estimating vacancies and ensuring zero vacancy is followed, the sanctioned strength is adequate to dispose the inflow of cases and some backlog. Even if we assume that there would be upto 5% vacancies, the backlogs would go down dramatically. If this simple solution is implemented the problem will move towards a resolution. This is a simple mechanical solution.

If the queue of cases does not keep getting longer, most delays would be reduced considerably. If the queue is very small there is not much scope for delays. If a policy decision were taken to ensure zero vacancy in the judicial positions, it appears that the backlogs would become history and the fundamental right to speedy justice would be actually implemented in our courts. The policy decision could also be made a law with accountability fixed for who is responsible to ensure its implementation.

Shailesh Gandhi is Former Central Information Commissioner.

Acknowledgment: I have been given great help by my friend Arun Joshi in the calculations and analysis.

Note: There are some differences in the closing balance of pending cases between my working and that of the website. I have taken the arithmetical balance whereas the balances in the website are not matching completely. There is a significant difference in the High Court balance and a small difference in the Subordinate Court's balance. However the overall results would not vary significantly.