In at least one bench of the National Consumer Disputes Redressal Commission, the apex forum for consumer grievances, cases that were adjourned recently were allotted a next date in the first week of August 2020. In case the matter at hand is particularly urgent and absolutely cannot wait, then a sooner date is given — around September 2019. Judges across India’s courts are reeling under a case-load that is simply unmanageable.
It is tempting for policy-makers to dismiss judicial pendency as another unfortunate statistic — like road accidents or pollution levels — that cannot be helped. Delayed resolution means that potential litigants, erring companies, for instance, will feel incentivised to renege on their obligations under the assurance that their dues can be delayed by several years at very little cost while the courts take their time. Just as importantly, when judges have a cause list of over 50 cases every day, one can only guess the quality of justice that is delivered.
Pendency – bursting at the seams
A look at the Supreme Court Annual Report for 2018 will show that while in most high courts the number of cases disposed off during the year is more than the number of fresh cases, it is hardly a patch on the total number of cases outstanding. Take the Bombay High Court, for instance. Working at almost 75% of its sanctioned judge strength, the high court disposed off about 35,000 civil writ petitions against the 40,000 new such petitions that were filed in the year preceding. However, that’s in addition to the 96,000 writ petitions that were already pending at the beginning of the year (which has now crossed a lakh).
Criminal cases enjoy a better disposal rate, but even though over 2,500 fresh criminal appeals were instituted as well as disposed of during the year, the pendency is almost 25,000 appeals. Now if you turn to the subordinate judiciary under the Bombay High Court’s jurisdiction (district courts, and the like) it is working at almost full sanctioned strength, and yet, its pendency of about 34 lakh cases at the beginning of the period has only grown.
Most of the commentary about addressing this crisis has focussed on filling the sanctioned strength of judges. However, as the experience from Maharashtra shows, maybe it’s time to question whether our sanctioned strength of judges is sufficient to meet the litigation challenges of our population.
India’s current budgetary expenditure on the judiciary is under 0.5% of our total budget. It is difficult to expect that an independent judiciary will exert its weight as the third pillar of our democracy, if it is expected to survive on such a paltry budget. This must improve in the upcoming budget, scheduled to be presented on July 5.
Together with more courtrooms and court-staff, more competent judges are an absolute necessity. This along with fresh infrastructure (better case-management and allocation tools) can work wonders for our Ease of Doing Business as well as general citizen contentment.
Rethinking our judicial set-up
This government could also be forgiven if it borrows from the Congress’ election manifesto, but two radical proposals (though by no means original) must be given serious thought.
First, a more transparent system for appointment and accountability of judges is the need of the hour. Ironically, one of the first legislation introduced by the previous government was the National Judicial Appointments Commission Bill for streamlining the appointment of judges. However, once passed, it was struck down by a Constitution Bench of the Supreme Court — members of which are now expressing regret over their own decision, given the controversies since. A more robust committee, which has not more than one representative of the government, if at all, should meet with better acceptance.
Second, an intermediate court(s) to hear appeals from high courts so that the Supreme Court is left to focus on only matters of constitutional importance (like the US Supreme Court does) also is an idea that cannot wait. This will solve two problems — the severe pendency in the apex court, which can be radically managed by four regional appeals courts, let’s say, as well as the severe delay in constitutional bench judgments, which hopefully will streamline landmark judgments to give more clarity to judges below. The issue was referred to a constitutional bench in 2016, where, ironically, it has since languished. Interestingly, the present attorney general was an amicus curie back then, and had strongly supported the idea of such a court.Abraham C Mathews is an advocate based in Delhi. Twitter: @ebbruz. Views are personal.