India 
xxviihas a dichotomous relationship with its judiciary. The judiciary continues to remain the most respected of state institutions, primarily due to its activist approach to many social and environmental matters that has brought a semblance of order and logic to the state’s action on those issues. In addition, the technocratic character of the judiciary and the inherent procedural fairness associated with judicial proceedings give the judiciary a cloak of intellectual superiority that is difficult to challenge. On the other hand, the severe delays in deciding cases has not only led to frustration among citizens, but to a real fear that the judiciary has become dysfunctional. The continued secrecy associated with the appointment of judges to the higher judiciary has added to the fears of citizens. Further, there is near unanimity on the fact that marginalised sections in the country have difficulty in accessing the justice system for a variety of reasons, such as lack of proper articulation of their rights, massive costs, technical challenges, and legal illiteracy.
This report focuses on two primary aspects — delays in the judicial system and access to justice. While it contains a chapter on the appointment of judges to the higher judiciary, it does not address the many questions that have arisen following the Supreme Court’s 2015 judgment in the National Judicial Appointments Commission (NJAC) case. Raju Ramachandran’s ‘A Case of Self-Selection: Judicial Accountability and Appointment of Judges’ brilliantly analyses the NJAC judgment and its implications on the judiciary, its independence, and relationship with society and other state institutions. Ramachandran also explains the evolved scope and use, worrying in his view, of the basic structure doctrine.
xxviiiDelay is the biggest and most visible problem facing the judiciary. There is a large body of discourse on judicial delays in the country. While the discussion has helped in increasing awareness of the problem, it has lacked the substantive depth and persistence necessary to transform itself into a momentum for change. Importantly, it has largely been dependent on anecdotal evidence, due to the absence of data. This is despite a decade-old effort to computerise the judicial system. In ‘Bringing the “E” to Judicial Efficiency: Implementing the e-Courts System in India’ Atul Kaushik describes the painful but exhilarating process of kick-starting the computerisation of courts and, in particular, the journey and plans for the e-Courts Project that aims to bring all the subordinate courts in the country onto a single platform. However, even after these efforts, no scientific maintenance and analysis of court-level data is available for anyone to meaningfully understand, discuss, and analyse the problem of delay, let alone propose sustainable solutions as pointed out by the Law Commission of India in its 245th report.
Two simple examples illustrate the seriousness of this problem. According to the National Court Management Systems Committee (NCMSC), established by the Supreme Court of India, as on 31 December 2011, there were 14,924 sitting judges in India across all the tiers of the judiciary. In addition, there were 3,947 vacancies, taking the sanctioned strength of judges to 18,871. This number appears to have increased in 2015, according to Court News (brought out by the Supreme Court), which indicates a total of 21,543 as the number of sanctioned judges, with a vacancy of about 30 per cent. However, the National Judicial Data Grid (NJDG) puts the figure of subordinate judges at 15,894 (as on 25 March 2016). If we add the numbers of judges in the High Court and Supreme Court, based on information from their respective websites, the number comes to just under 17,000. Thus, there is no unanimity even on the actual number of judges in the country!
Similarly, there is no clarity on the exact number of cases pending in the system. Even accounting for the daily filing of new and disposal of old cases, different reports give different numbers. A Press Information Bureau release on 3 March 2016 declares that the total number of cases pending across all courts is approximately 3.06 crores. However, as on 25 March 2016, the NJDG pegs the number of cases pending in the lower judiciary at 2,12,19,848. If we add the cases pending before various High Courts and the Supreme Court, the number increases by approximately another 42,00,000, bringing the total number to approximately 2.54 crores, a figure well below 3 crores.
Perhaps the differences can be explained. The point to note however is the lack of uniformity in available data.
There is also very little information on what the total number of cases really means for the judicial system and the litigants, and the real reasons for such a large number of pending cases. For example, there are no details available on the types of cases that are taking longer than others and clogging the system, nor is there any analysis of the reasons that could explain the delays. It is only when such data is collected and rigorously analysed will solutions for addressing the delays emerge.
DAKSH’s Rule of Law project seeks to fill this vacuum. Using publicly available data from daily cause lists, the e-courts portal, and the websites of the Supreme Court and various High Courts, DAKSH has, over the last 16 months, built a data portal with various analytical tools that makes it possible to meaningfully understand and analyse pendency and the reasons for pendency. As on 1 April 2016, the database contains more than xxix40 lakh cases pending in the Supreme Court, 21 High Courts, and about 475 subordinate courts. The portal contains information, inter alia, on pendency in different courts, average number of hearings in each court, frequency of hearings, and pendency for different types of cases. It is now possible, for example, to compare, quantitatively, the efficiency of different courts in a state or across states. Even within a court, we can identify the categories of cases that are clogging the system and reorganise work allocation and priorities. As my colleague, Kishore Mandyam, insightfully points out in his chapter titled ‘Reaping the Benefits of the e-Courts System’, it is important to not only gather data but ensure that such data becomes information in the hands of policymakers. The DAKSH portal makes it possible for the leadership in the judiciary and executive to better understand and analyse the problem of delay and discuss possible solutions.
The DAKSH team has prepared a number of graphs and charts identifying and analysing patterns in cases currently before the judiciary, which bring out different facets of the functioning of the judiciary. These graphs and charts are included in the chapter titled ‘Decoding Delay: Analysis of Court Data’. The DAKSH team has also explained the various gaps in the availability of data on various courts’ websites, and the difficulties in comparing data across courts due to the diversity of nomenclature used even for similar cases. Suggestions for change in data generation and management are also included.
The questions on delays reveal a more fundamental problem at the heart of the judicial system — the lack of a dedicated group of people dealing with judicial administration. By judicial administration, I mean all activities of the judiciary other than the actual hearing and deciding of cases. It includes, inter alia, the management of cases and workload within the system, supervising the administration of courts, preparing budgets, evaluating infrastructure, and managing human resources. Constitutionally speaking, judicial administration is a collaborative effort between the judiciary (mainly High Courts) and the executive (primarily state governments). However, due to the fierce assertion of independence by the judiciary even in matters of administration, the executive has more or less abdicated its responsibility, resulting in a complicated situation where the structures of power and accountability are different. The executive’s abdication has meant that, in practice, the judiciary is exclusively responsible for the administration of the judicial system in the country. This effectively means that the Chief Justice of each High Court has the primary responsibility for the superintendence of all the courts in a state, although he shares this burden with other judges in that High Court. But judges have no administrative experience whatsoever. They are lawyers appointed primarily because of their knowledge of the law. Even more critically, judges do not have the time for administration, given that they spend their working days in court, hearing and deciding cases. Outside court hours, they prepare for the next day’s hearings and write orders. So when can they focus on the administrative duties they are entrusted with? The unfortunate reality is that administrative functions are treated as an adjunct evil and dealt with when judges manage to get some free time from their judicial functions. Furthermore, the characteristics of any good administration, such as transparency and reasoning, which the judiciary prescribes as essential for other institutions of the state, are not always visible in judicial administration.
xxxIn ‘Accountability in Judicial Administration’, Arun Sri Kumar explores several of these issues by examining the constitutional vision for judicial administration, the current reality, and the need for change. In particular Sri Kumar points out that while the Chief Justice of each High Court has all the powers in respect of judicial administration, since he is not answerable to anyone for the exercise of such powers, there is no accountability. Sri Kumar argues that the need of the hour is to create and develop a cadre that focuses only on administering the judiciary — not only from a day-to-day operational perspective, but also from an overall policy and system perspective. Sri Kumar also notes that the judiciary continues to be dependent on the executive for financial needs, since the latter controls the purse strings.
Following on from Arun Sri Kumar’s observations on the financial relationship between the judiciary and the executive, Surya Prakash B.S., in his brief but insightful chapter titled ‘Budgeting for the Judiciary’, brings to fore the lack of a methodical approach in preparing budgets for the judiciary. Budget making has become a mechanical process — providing for inflation and additional manpower — rather than an opportunity to fund new priorities and tackle old problems. There is no financial expertise available within the judiciary to manage this process. In fact, there is no one taking leadership to utilise the funds made available for major reforms. For example, while the 13th Finance Commission created a separate budget (Rs 5,000 crores) for major reforms in the judiciary, just about 20 per cent of that money has actually been spent until now, demonstrating the lack of vision and skills needed to implement programmes effectively.
Sandeep Suresh, in his chapter, ‘International Experiences in Judicial Administration’, reviews the experiences of other countries such as United Kingdom, Ireland, and South Africa, who felt the need to create new institutions to be exclusively in charge of judicial administration. Suresh points out the marked difference in judicial performance in those countries following the establishment of a cadre that focused on improving the administration of the judicial system, which worked in tandem with the executive and the judiciary.
The severity of pendency implies that the judiciary is not functioning efficiently or effectively. In his chapter called ‘Judicial Efficiency and Causes for Delay’, Alok Prasanna Kumar makes an effort to identify the reasons for delay in the functioning of the High Courts based on DAKSH data on disposed cases. In particular, Prasanna examines why certain types of cases appear to take longer than others to be decided, even though the processes they follow are similar to others in the system. This leads to the question, which Prasanna does not answer, on whether judges are uncomfortable about deciding certain types of cases, and that could lead to severe delays.
M.V. Sundararaman and Varuni Mohan focus on the day-to-day functioning of a single High Court, both in the court halls and the Registry, in their chapter ‘Karnataka High Court: People, Processes, Pendency’. They examine the process by which a case moves through the Registry and into the court hall from the time of filing until disposal in the High Court of Karnataka. They raise questions about some accepted practices regarding change of roster, allocation of work, part-heard matters, and their impact on the principles of fairness and certainty, both fundamental characteristics of the judicial process. They also point out the problem of unfilled vacancies and note that the High Court of Karnataka is functioning at less than half its sanctioned strength.
xxxiIn ‘Evaluating Judicial Performance: A Comparative Perspective’, Vasujith Ram studies international experiences of evaluating judicial performance, in terms of both judicial and administrative aspects. Ram examines the quantitative and qualitative measures adopted by different countries and evaluates their advantages and disadvantages. Ram’s chapter provides food for thought in the backdrop of the NJAC case and the new memorandum of procedure for appointment of judges to the higher judiciary.
Focusing on pendency can mask the extremely long work hours and stressful lives of judges, lawyers, and court staff. In a brilliant chapter, ‘Wielding the Gavel: View from the Other Side’, Justice Gautam Patel explains the everyday life of a High Court judge. Patel makes two extremely insightful points — first, the relentlessness of the daily schedule, and second, that judges are human beings and not machines that can produce immediate output. Justice Patel’s chapter underlines the fact that judges work extremely hard to deliver justice, something that critics of the system forget because of the focus on enormous pendency.
Complementing Justice Patel’s chapter are accounts by two lawyers, one with more than two decades of experience, and the other, a relatively recent entrant into the profession. Both Arun Kumar K. (‘Never a Restful Moment: A View from the Bar’) and Anupama Hebbar (‘Playing the Waiting Game: A Lawyer’s Day in Court’) talk about the day-to-day life of a litigating lawyer, the highs and lows, the stresses, the delays, and the expectations and frustrations, not only of their clients, but also their own.
Shiva Hatti, in his chapter ‘Behind the Bench: Perspectives of Court Clerks’, reports on his conversations with clerks in the Bengaluru courts. Court clerks or officers are mostly silent spectators, who are witness to every proceeding, but whose efficiency can have a determinative influence on the overall efficiency of the judge. While Hatti highlights various facets of the daily routine of a court clerk, one message comes through clearly — the utter lack of formal, mandatory, institutional training. Trial courts, in particular, depend a great deal on court clerks to implement processes correctly. Yet, they are left to learn on the job, which is viewed as a low-skill one, and no training is provided to introduce clerks to their duties or help perform them efficiently.
Whether every person in the country has access to justice is a question that has agitated the minds of political and judicial leaders since independence. Several efforts, such as establishment of special courts, gram nyayalayas, tribunals, legal aid services, Lok Adalats, and so on, have been made over the last 50 years to ensure that everyone in the country gets access to the judiciary. Despite such efforts, many believe that the majority of the people in India do not have meaningful access to justice. As in the case of delays, there is very little data available to support any significant debate on access to justice. Except for a few isolated studies by academics in discrete areas, there has been no data-driven study to evaluate the effectiveness of the diverse efforts made to improve access to justice.
Any access to justice study has to address three broad issues: (a) What is the meaning of justice and access and how can they be measured? (b) What kind of disputes arise in society and how are they being resolved? What are the barriers, if any, to xxxiiapproaching the judiciary for resolution of such disputes? Which alternate body or system resolves disputes that are not brought to the judiciary? (c) Who are the people that approach the judiciary? How does the system treat them and what socio-economic costs do they incur? Further, what is the cost to society as a whole in the course of resolution of these disputes?
Chandan Gowda discusses the meaning of ‘access’ and ‘justice’ in access to justice in his chapter ‘Institutional Dimensions of “Access” and “Justice”’. He explores the political and societal understanding of justice, the institutional infrastructure and ecology required to render justice, and the potential sources of conflict between justice of the state and other forms of justice in a heterogeneous society. Gowda also stresses upon the need to bring about institutional and infrastructural changes in light of the findings from DAKSH’s Access to Justice Survey. In ‘Indian Judiciary and Access to Justice: An Appraisal of Approaches’, Aparna Chandra makes a powerful argument for the need to delink access to courts and access to justice. Access to justice is a more substantive concept and should be recognised as such, to ensure that the judiciary moves beyond viewing judicial delays and access to justice as a resource problem, and give meaning to the real need of the hour, which is to recognise rights of various groups, particularly at the margins of society, to the several forms of justice guaranteed by the Constitution. Ashwini Obulesh, in her chapter called ‘Institutionalising Justice: Gram Nyayalayas and Consumer Courts’, describes the contrasting journeys of implementation of the statutes that established the gram nyayalayas and consumer fora. Although the consumer fora have been around for much longer than gram nyayalayas, Obulesh argues that the absence of a clear vision about how gram nyayalayas are to function and their relationship with the regular courts has impaired their effectiveness.
To gain insight into the identities and needs of litigants, DAKSH conducted a survey amongst more than 9,000 of them, across 300 subordinate courts in 24 states, who are seeking resolution of their disputes in the judicial system. The findings of the survey are set out in detail in this report. While the survey provides many fascinating insights, the blockbuster findings relate to the economic cost of judicial delays. Even on a conservative basis, the cost of delays is about 0.5 per cent of India’s gross domestic product (GDP). In addition, litigants across the country spend more than Rs 30,000 crores a year, only to attend court proceedings in their cases.
Ramya Sridhar Tirumalai explains the story beyond the numbers in her piece, ‘In the Temple of Justice: Survey Experiences’. Tirumalai describes the ebb and flow of life in a magistrate’s court in a small town in Kerala, as well as her experiences (and that of two surveyors) during the survey process, when they spoke to several accused facing trial in that court. In ‘Paths to Justice: Impact of Access to Justice Surveys on Judicial Reform’, Krithika Gururaj describes the experience of the United Kingdom where path-breaking research was conducted to measure the citizens’ expectations of the judiciary, together with some systemic changes that resulted. Gururaj expresses the hope that DAKSH’s Access to Justice Survey will also lead to changes in the system.
It is critical to draw away from the institutional standpoint in order to address issues of judicial delay and access to justice. Delay and access have to be measured not from a judge’s perspective but from a citizen’s perspective. A simple illustration will suffice to highlight the difference in approach: xxxiiiA judge who is slated to hear 100 cases a day cannot be faulted if he is unable to hear all of them. In fact, he may have an extremely satisfactory day even if he deals with 80 out of the 100 matters listed. But that is not acceptable for those litigants whose matters are not heard. The system has failed them and it is this failure that needs to be addressed. Unless and until such a citizen-centric approach is adopted, tackling the two issues of judicial delay and access to justice will be difficult. This report is a small step towards bringing the citizen into focus. We hope that both the judiciary and executive take the initiative and work together to restore the judiciary to its rightful place — as the conscience keeper of the nation and a home for justice.