By Manvendra Prasad and Anshuman Singh
India’s reforms have now extended beyond the traditional — the economy, to different aspects of being an Indian such as that under the umbrella phrase “ease of living”. India is being reshaped into a more affluent society, with economic, military and geopolitical heft that has been long the chimerical potential of the country. Amidst the fast and furious change remain some sectors that are insular and protected. One amongst them is an essential element of our democratic being — the judiciary.
Amidst the numerous assertions by the PM and the current dispensation about making India a developed nation by 2047, it can be safe to say that without judicial reforms this goal is unlikely to be met. Therefore, it is hoped that the reforms in our judiciary will be high on the new government’s agenda.
India’s judicial machinery is choked with some 50 million undecided cases — 1,69,000 of these await a verdict for at least 30 years. While the bulk of these are within the lower court system, even the highest court in the country has a backlog of more than 80,000 cases. There seems to be no solution in the works because these numbers of pending cases have been steadily rising. This leads to obvious delays in the delivery of justice.
The Law Commission of India’s report way back in 1987 recommended 50 judges per million population, however presently the judge-population ratio in the country works out to be approximately 21 judges per million population. The district judiciary’s working strength was 20,026 as against the sanctioned strength of 25,423 in the year 2023. Clearly, the shortage of judges is quite severe.
India has seen unprecedented changes in its infrastructure in the last decade or so, here too the changes have sidestepped the judiciary. The judicial ecosystem suffers from widespread inadequacies in its infrastructure. This becomes acute, especially for the lower judiciary. Court buildings, facilities, technology and housing are remarkably outdated.
Across the world, diversity and inclusion are buzzwords but for our judiciary. The representation of women amongst registered advocates, and sitting judges is out of sync with the global trend.
While there remains an unsettled debate about the most appropriate way of appointing judges to the High Court or the Supreme Court, undoubtedly there is something hazy about judicial appointments. Some casual claims say that approximately 80 to 100 families have a stranglehold over the higher judiciary in the country. If anecdotal evidence — the number of SC judges whose fathers or close relatives served in the higher judiciary, is an indicator then there is fair confidence in the claim.
IMPACT
Given the current state of affairs, the judiciary is failing in its fundamental responsibility — delivery of justice. The delay in justice is its denial. This impacts all aspects of our lives and all strata of our society. Needless to say, besides small businesses, the poor, the marginalised, and vulnerable groups bear a disproportionate pain of this dysfunction.
With restricted access to justice, the process of accessing it is the punishment in itself. With prolonged litigation, the time, money and emotional and physical energy spent is often an unbearable burden.
These issues of our justice system have a considerable impact on our economy. For instance, take the case of “doing business” in India. While the World Bank’s Ease of Doing Business ranking has been discontinued a key parameter in these rankings was “enforcing contracts” — procedures, time, and cost to enforce a debt contract. India’s rating on this parameter was the primary reason for its poor and continued middling ranking.
With significant unwritten entry barriers, many bright minds are opting away from pursuing a career in the judiciary.
GOING FORWARD
The obvious first step to ameliorate this situation will be to eliminate the shortage of judges. Initially by filling in the gaps and then by expanding the number of judges, especially for the lower judiciary — we need to get to the recommended judge-to-population ratio of 50 per million. By building a robust support system of personnel we could help the honourable judges judge more efficiently. Creating an All-India Judicial Service could be the panacea for many of the ills we are grappling with. A unified and centralised system of recruitment, and career growth of judicial officers can become the “steel frame” of judicial administration. This also addresses many issues of nepotism in the judicial ecosystem.
In the interim Union Budget for FY 2025, the government announced the withdrawal of outstanding direct tax demands up to Rs 25,000 for about a crore taxpayers. It is the same spirit which needs to show up in its approach to judicial reforms. The government is by far the biggest litigator and a smart approach to this could eliminate a sizeable chunk of pending cases in the courts. Similarly, if data shows that some type of litigation is disproportionately high volume, for such cases strong disincentives need to be built. For instance, in cheque-bounce cases, defendants who lose the case can be made to pay to the plaintiff interest above the regular deposit rates.
Just as the Law Commission had recommended, the vacations in the higher judiciary should be pared down, it can aid the cause of reducing the pendency of cases. With improved life spans the retirement age of judges in the higher judiciary can be enhanced.
The proposed National Judicial Infrastructure Authority of India should be brought to life at the earliest to dramatically improve the physical and technological infrastructure. It should begin with a disproportionate focus on lower courts. Improved technology infrastructure could also enable the usage of upcoming technologies such as blockchain and AI. Alternate dispute redressal solutions will get a shot in the arm too.
Further, parallel reforms in the other pillars of our criminal justice system — police and the correctional system, will also go a long way in making our judiciary more efficient.
—Prasad is a public policy and startup advisor; Singh is a partner with Agram Legal Consultants
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