Delays in the judicial delivery are responsible for a large number of our country’s problems. If the backlog is to be cleared in three years, the 20th Law Commission said in its report no. 245 submitted in July 2014, the strength of the judiciary would need to be doubled. After doing my own analysis of the data, I have determined that it will take much less.
The right method for evaluating the problem, the Law Commission concluded after evaluating it from various perspectives, is to consider the “rate of disposal” per judge per year. In simple terms, it assumes that if ten judges are disposing of 10,000 cases, 12 judges will dispose 12,000 cases. This may not be precise, but is likely to be the correct position broadly.
However, the Law Commission did not take the vacant judicial positions into account.
My analysis showed that if all sanctioned positions of judges were filled, there would have been no backlog by 2007: the queue would have disappeared and it would have been possible to devote adequate time to all cases without having to wait. In most cases, it should be possible to dispose cases in less than three to six months.
In Australia, over 70% of the cases in the magistrate’s courts are decided within 13 weeks.
Crunching the numbers
I decided to also take a look at this issue by analysing the data given on the Supreme Court’s website for a 12-year period from 2006 to 2017 (both years included), which has a quarterly report for all the courts.
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. 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.
While the sanctioned judicial positions are about 19.1 judges per million Indians, the actual working strength is only 13.9 judges per million population.
The number of judges sanctioned on December 31, 2017, was 31 in the Supreme Court, 1,079 in the High Courts and 22,704 in the Subordinate Courts. The actual number of judges appointed was 25 in the Supreme Court, 676 in the High Courts and 17,028 in the Subordinate Courts.
Thus, the total number of sanctioned posts were 23,814, whereas the working judges were only 17,739. Filling about 6,000 vacant positions could make the judicial system deliver efficiently.
The increase in pendency in 12 years was about 56 lakh cases whereas the disposal missed due to not filling all sanctioned posts was nearly 661 lakh cases. The average 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%.
Even if infrastructure is inadequate, it would need to be augmented by only about 20%. The capital cost of setting up courtrooms would not exceed about Rs 4 crores per court house, or a total of about Rs 24,000 crores only.
This is a simple solution. It 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 of matters at the same rate as those who are already in the system.
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 could also be forecast early.
Surely it can be ensured that this process can always be started 12 months earlier and the
Collegium recommendations at the Supreme Court and High Court levels 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 completed in advance.
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 up to 5% vacancies, the backlogs would go down dramatically.
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 to ensure its implementation.
Shailesh Gandhi is a former Central Information Commissioner.