Streamline case management, push for an alternative to help curb judicial backlog, say experts

According to PRS Legislative Research, between 2010 and 2020, pendency of cases across all courts grew by 2.8% annually.

Skewed judge-population ratio 

With an abysmal judge-to-case ratio, the simple solution appears to be to appoint more judges, but a deeper look would indicate that adding more judges to the system alone is not enough to tackle a problem that requires action from all stakeholders.

Sunil Fernandes, one of the newly appointed Additional Advocate Generals for the state of Punjab in the Supreme Court, points out that the judge-to-population ratio in India is one of the most skewed among developing countries.

While this ratio needs to be worked on, it needs to be backed by well-trained court staff and judicial officers for making the system more efficient, he says.

Problems of the judiciary need to be addressed systemically, says Deepika Kinhal of Vidhi Centre for Legal Policy says.

“For example, when we talk of judges, instead of making it a numbers game, we should think of improving the quality of candidates wanting to be judges, adequate training for those who are inducted and quality support in terms of infrastructure and resources to ensure a judge is able to work to her optimal capacity,” she says.

Not a judicial problem, a management problem 

With more new cases coming to the justice delivery system than ever, one of the issues that deserve to be looked into is the management of the court systems.

In the existing format, it is the judges that are responsible not only for their judicial work but also for the administrative duties in the operations and functioning of the courts and their staff.

This, according to Kinhal, is an inward-looking system where “the buck stops with the judge”.

Moreover, judges at the helm often take on initiatives for bringing change to the system, but these initiatives remain short-lived and often fizzle out with the judge demitting office.

A simple example of this can be seen in the way mentioning of urgent cases has been handled by different Chief Justices of India in the recent past. The process put in place does not survive the change which may also disincentivise registry and court staff in following through on the initiatives.

The problem that is laid bare here is this – a judge has judicial expertise but may not possess adequate managerial and administrative skills to also design processes that can streamline the functioning of the judicial system.

Bringing in the right experts to advise on the court system’s management may lift a substantial burden off the judges and help in giving a streamlined structure to the functioning of the courts.

As such, there is a need for professionalising the justice delivery system, Kinhal says. “Professionalise the judiciary by bringing in the right expert for the right problems… Case pendency is not a judicial side problem, it is a management problem.”

No accounting for judicial time 

In a system that is largely process-driven than outcome-driven, a lot of cases that enter the system may not necessarily require the attention of a judge, says Senior Counsel Sanjay Hegde, who practises in the Supreme Court.

“Biggest non-renewable resource in the judicial system is court time and there is no accounting for expending it or wasting that time,” says Hegde, who highlights that in many Western systems, litigants have to bear high costs on losing a case, encouraging more settlements outside the court.

The Alternative Dispute Resolution (ADR) system, which is essentially an alternative to going to court, is a promising but under-utilised system in India.

At present, arbitration is usually adopted for high-value commercial cases while the mediation mechanism needs a boost in terms of its staff. Bulk of the cases that get settled in  Lok Adalats are referred by courts for settlement after much judicial time has been spent on them.

To resolve this issue, Fernandes says “all civil cases must compulsorily be referred to ADR - both pre- and post- litigation.”  If more cases are routed to ADR, the pendency pipeline in courts may be considerably unclogged.

To make this happen, however, there is a need for consistent capacity-building in the arbitration and mediation space, Kinhal says.

“We need Mediation and Arbitration centres with trained professionals who provide affordable and efficient services. Capacity-building needs to happen consistently for a few years before we can mandate pre-litigation mediation or arbitration of cases.”

‘Government is the biggest litigant’ 

The government is one of the largest stakeholders in the system, in addition to being the biggest litigant, and can take effective steps in slashing the number of cases that reach the courts.

At present, a majority of the cases under writ jurisdiction before high courts comprise of service matters where the government is a party that flags the need for its departments to put a mechanism in place to resolve and redress service-related disputes to prevent them from seeking judicial orders.

“Government departments need to have a robust internal grievance redressal mechanism and need to have officers who are empowered to take decisions whenever a dispute arises between an individual employee and the department,” says Kinhal.

Hegde highlights that bureaucrats would much rather have a judicial order settling a dispute between the department and an individual than take decisions that may make them answerable in the future.

Inter-ministerial and inter-departmental cohesion and coordination is also a must, says Fernandes.

“Government can form an independent committee at all levels that scrutinises whether an appeal must be filed at a higher forum or not,” he elaborates. “In fact the law department must have a desk which coordinates between the various departments and ministries to ensure that inter se litigation is minimised.”

Without active collaboration from the stakeholders including litigants themselves, the problem of pendency cannot be effectively attacked.

As Kinhal says, “Judges alone cannot be held fully responsible, lawyers and litigants are equally responsible for the way the system is.”