Case Arrears, Infrastructure Problems, Gender Disparity : Crisis Looms Over Bihar Judiciary

While laying down the foundation stone of the Patna High Court building on 1st December 1913, the then Viceroy and Governor General of India Lord Hardinge of Penshurst said, “I now proceed to lay this stone in full confidence upon the people of this province. I feel assured that within its walls in future days justice will be administered with courage and impartiality to the terror of evil-doers, and to the triumph of every cause which is right and true, so that the High Court of Bihar shall earn a name for sound sense and good law.”

Two and a half years later in February 1916 when the High Court building was formally opened, the same Viceroy said, “I am about to perform an almost unique duty and one which I do not think has fallen to the lot of any previous Viceroy…I think when I look at this fine building that the people of this province may congratulate themselves in many ways on their new institution. It will be an emblem of the great, and, perhaps, even weightier, in its decision as between the individual and the State…With my most earnest wishes that the labour of this Court may be inspired with wisdom, justice and mercy I will now proceed to open the building.”

Although those were lofty words by an Englishman almost 100 years ago, there can be no doubt about the fact that the Patna High Court, like any other judicial branch of the country, had huge responsibility on its shoulders. This responsibility did not start and end at deciding disputes as a routine affair, but spread to ensuring better access to justice for the residents of one of the most downtrodden states of the country.

To ensure access to justice for its people, the Patna High Court and the Bihar State Judiciary as a whole, like any other judicial branch of the country, was supposed to be inclusive and representative of a diverse class of citizens so as to efficiently answer the many problems that are unique to the state.

Need For Unique Solutions to Unique Problems

The recently released report of the Bihar Caste-Based Survey indicates that more than 63% of the State’s population belong to the Backward Class category and almost 20% form part of the Scheduled Caste population. With over 50% of its population being multidimensionally poor, lowest on per capita GDP and with the highest percentage of population being below the poverty line, Bihar faces a unique problem. According to official data, the State has the lowest literacy rate in the country, most number of malnourished children, second most backward in overall health performance indicators and highest in gender pay gap. Moreover, issues such as chronic poverty, social conflict, pervasive gender discrimination, low literacy rates, lack of employment opportunities and increasing rates of crime stare in the State’s face.

A judiciary that is supposed to deliver justice in such a complex state can choose to be anything but inefficient. It has to necessarily be inclusive, diverse, duly represented by the vulnerable and affected class of citizens and increasingly modern. It has to forge unique solutions for unique problems.

However, the judicial system in the state of Bihar today is currently reeling under pressure. With a burgeoning backlog of cases, both in the High Court as well as in the District judiciary, its issues are the most unnoticed in mainstream media.

An Alarming Crisis

The Bihar State Judiciary today paints a grim picture, marked by challenges that are systemic and persistent. With a staggering backlog of 3.5 million pending cases, including 534,172 civil and 3,027,739 criminal cases, Bihar ranks at an unenviable third position amongst the states in the country in terms of backlog and pendency of cases. Uttar Pradesh and Maharashtra are the top two. In around 380,481 cases that are currently pending, comprising 97,888 civil cases and 282,593 criminal cases, the litigant is a woman. The state ranks third amongst all the states in terms of total pending cases filed by women. Close to one lakh cases in the State of Bihar have been pending for more than three decades alone. On an average, it takes almost 5 years before a case is disposed of at the Patna High Court.

This alarming figure is certainly part of a national crisis, with over 4.4 million pending cases across India's district and subordinate courts, as highlighted by the Union Law Ministry. However, the situation in Bihar is relatively more problematic than other states.

The judicial infrastructure in Bihar is not just inadequate but in a state of wanting. Judicial infrastructure, that does not just include courtrooms but also includes facilities for legal professionals and litigants, presence of alternative dispute resolution mechanisms for litigants, sufficient and efficient legal aid infrastructure, etc is currently reeling under crisis in the State.

The working conditions for those at the level of the district judiciary remains unsatisfactory. The Patna High Court itself, in its 2022 observations, while dealing with a plea highlighting the apathy on the part of the State in providing basic infrastructure and facilities for the advocates practicing in various courts within the State of Bihar, lamented on the lack of basic amenities for lawyers. In Ramakant Sharma v. The State of Bihar & Others, the High Court emphasised, “We cannot be unmindful of the fact that lawyers are part and parcel of the justice dispensation/delivery system and, as such, complete infrastructure is necessarily required to be in place for their use. To begin with, such infrastructure by way of construction of halls, be it adjacent or adjoining to the complexes must be endeavoured.”

Building Better Courts (Surveying the Infrastructure of India's District Courts - a report by Vidhi Centre for Legal Policy, laid bare the abysmal condition of district courts in Bihar. Inadequate infrastructure, ranging from a shortage of courtrooms and waiting rooms to filthy washrooms and dysfunctional taps, makes navigating the courts a daunting task. While 81% of court complexes are accessible via public transport, a mere 20% have guide maps and only 45% boast help desks.

When analyzing Bihar’s situation in contrast to states like Delhi and Kerala, the disparities become even more apparent. While Delhi and Kerala boast 90% and 84% fully functional courtrooms respectively, Bihar lags significantly behind at a mere 26%. Moreover, the latest India Justice Report points out that the State has a current shortfall of a little over 20% in terms of courthalls.

Lack of Women Representation in the Bihar Judiciary

Women, who form 48% of the State’s population are the most under-represented in the State’s Judiciary. The Chief Justice of India Dr DY Chandrachud, recently lauded the trend of more and more women getting appointed in the District Judiciary across the country. However, in Bihar, that is far from being the truth.

The Patna High Court today does not even have a single woman serving as a judge. This has more or less been the situation in the last 100 years of the High Court’s history. The High Court has had only 9 women judges thus far in its entire history of existence. That, unfortunately, is not even one percent of the total number of judges who have been appointed to the High Court.

Furthermore, there is only one designated female Senior Advocate in the Patna High Court today. Again, in the High Court’s 100 year long history, it has had only 3 designated women Senior Advocates.

The Bihar State Bar Council has not had even a single woman as its Chairperson in its 60 year long history. No woman has ever been appointed to the post of Advocate General or Additional Advocate General in the State. Until June 2022, the share of women who were designated as panel lawyers in the legal aid clinics by the State government was a meagre 18.55%. These statistics are shocking.

Senior Advocate at the Supreme Court, and a Former Judge of The Patna High Court (one of the 9 woman judges ever appointed), Anjana Prakash, while speaking to Live Law said, "In Bihar I found a lot many girls increasingly choosing to join the legal profession.Though I am not sure whether the working conditions have improved for them even with basic facilities like a designated toilet. There is a need for addressing the concerns of women in the profession. One can perhaps start seeing things as they are and that women do have some needs which are required to be addressed as a practical need not a special need."

Advocate-on-Record Shama Sinha who practices before the Patna High Court, while speaking to Live Law said, “In Bihar, women in the legal profession face hurdles in securing opportunities, training, and acceptance. This struggle is most pronounced at the district level, where fewer than 50 practicing women lawyers are found in places like Chapra and Hajipur. Surprisingly, the scenario reverses when it comes to representation of women in the judiciary at District and Taluka Courts. Competitive exams have paved the way for a significant number of women judges in civil and district courts, proving their competence and potential.”

Sinha’s opinion is an unfortunate and a stark reality. The Patna High Court is currently functioning at 60% of its sanctioned strength. Only 24% of the judges in the District Judiciary are women. State of Bihar is amongst those very few states that has provided 30-35% reservation for women in the District Judiciary. Despite that, what explains the striking gender imbalance?

The fact of the matter is that the intersectional problems and the prevailing crisis in the State judiciary have created an atmosphere of pessimism that discourages potential talents, especially women, from joining the legal profession in the State. This glaring gender imbalance is reflective of the systemic apathy within Bihar’s judicial system.

Amongst the several reasons behind this dismal show is the state’s struggle with brain drain that exacerbates this problem. Post-liberalization in 1991, the state witnessed a mass exodus of its residents in search of better job opportunities, education, and living standards. This phenomenon has perpetuated a cycle where competent individuals, especially women, prefer to opt for judicial positions outside Bihar. The lack of adequate facilities and opportunities within the state's district judiciary, compounded by the overall lack of development, has contributed to this trend.

Finding Unique Solutions

Addressing this crisis demands urgent action. Stakeholder participation is key to addressing the many challenges. Improving infrastructure, increasing diversity and encouraging young talent to take up positions of law officers in the State is important.

Simultaneously, implementing policy changes such as offering competitive incentives, training programs, and mentorship opportunities, can help bridge the gender gap. Concerted efforts to rectify the systemic issues and create a conducive environment are needed to mitigate the problems ailing the state judiciary and lack of diversity in its judiciary.

Senior Advocate Anjana Prakash opines, "There is a difference between representation in the bar and bench. Where bar is concerned a female can exercise her choice and become a lawyer but where bench is concerned the choice is in other's hands. And that is a complicated matter. All kinds of factors work against the interest of females resulting in a dismal representation"

When asked what concrete steps or initiatives can help address the gender imbalance in the legal profession in Bihar and promote greater inclusivity, Sinha said, “The solution to the gender imbalance in the legal profession is clear: "Opportunity." Women require equal chances for training, presenting cases, and arguing them. However, social restrictions, especially in district visits and building networks, hinder their progress in litigation practice. This issue is even more critical for first-generation female lawyers without political or bureaucratic connections. Empowering Bihar's women in the legal field benefits both the profession and society. It's time to provide the opportunities they deserve and let their legal prowess shine.”

On the other hand Nivedita Nirvikar, the only female Senior Advocate in Patna High Court, had a different point of view. While speaking to Live Law she said, “The gender diversity historically has improved in Bihar. So as per statistics things have improved and obvious there is always scope of improvement. Judiciary comprises many different layers and it depends on which layer of profession is the gender diversity question directed towards. I don’t think there are any barriers of entry be it diversity or any other factor created for legal profession. It is up for women to fight and take things up for grab.”

It is time that the collegium, the National and the State Bar Councils, the judges within the State Judiciary and all concerned stakeholders should raise these questions and bring out sustainable solutions from a bottoms-up approach. If the judicial system fails its population, their willingness to pursue a legal recourse too faces a daunting challenge. Embracing diversity, inclusion, adequate infrastructure, etc is not just a matter of representation; it defines the judiciary's commitment to justice, equity, and inclusivity. By implementing proactive policies, and establishing robust monitoring mechanisms, the Bihar Judiciary can pave the way for a more diverse, equitable, and just legal system, setting an inspiring precedent for institutions nationwide.

Conclusion

Chief Justice of India (CJI) DY Chandrachud during his keynote address at the inauguration of American Bar Association (ABA) Conference while responding to a question concerning the low representation of women judges in the High Courts and Supreme Court had said:

"The state of our institutions in terms of inclusion and diversity reflects the state of the profession two decades ago. The judges who come to High Courts today in 2023, or the judges who come to Supreme Court in 2023, reflect the state of the bar at the beginning of the millennium. Unless there was a level playing field for women to enter the legal profession and to thrive into legal profession between 2000 and 2023, there is no magic wand by which you will have more Supreme Court judges drawn from among women in 2023. So we have to create a framework for a more diverse and inclusive profession today if we truly have to create a future where our profession will be more inclusive and diverse."

This is key to addressing the challenge. The glaring lack of representation, as exemplified by the situation in the Patna High Court, begs the question - When are we going to create a framework for a more diverse and inclusive legal profession? The judicial system in Bihar stands at a crossroads. It will be crucial which road it takes.