Over one lakh cases are running for over 30 years in lower courts of India.
Bengaluru and Kolkata: The year was 1965. India was involved in a war with Pakistan. Calcutta was yet to be renamed Kolkata.
Back then, one Jogendra Kristo Dutt had filed a suit at the Calcutta High Court. It was against his brothers over the ownership of the assets left by his deceased father.
Little did Dutt know that he would not be alive when the matter would be settled in court. The case ran for five decades and involved three generations of his family.
Archita Nandy, the granddaughter of Jogendra Kristo Dutt, said that the case took such a toll on their family that her relatives don’t even want to talk about it.
This case, however, is not unique. Thousands of such cases are piling up each year in Indian courts.
Experts believe that judicial vacancies in courts are one of the prime reasons behind the case backlog. Despite the efforts of the government and the judiciary, the situation has not improved much.
India currently has 21.03 judges per 10,00,000 people which falls short of the 1987 Law Commission-recommended strength of 50 judges for the same population. Indian High Courts till April 7, 2022, had 717 judges out of a designated strength of 1,104. In district and subordinate courts, there are 19,314 judges working against the sanctioned strength of 24, 521.
Apart from the pending cases, the vacancies create more pressure on the existing judges as they are forced to work round the clock. Justice BS Patil, former judge at the Karnataka High Court and currently the Upa-Lokayukta of Karnataka, said that he had written judgement while sitting in the backseat of his car.
“My pen used to start moving at 10.30 in the morning till 5 in the afternoon. Still, many times I have seen someone waiting at my door and asking for their case to be heard. I always went to sleep thinking that I could not deliver justice to them,” he added while signing a file in his office at the Multi-storeyed (MS) Building beside Vikasa Soudha.
Before Justice Patil joined as Upa-Lokayukta, his post was vacant for four months. Patil said that this leaves arrears for the new person. “The cases keep piling up. It is like a loop,” he added.
Lawyers, judges, and parliamentary committees have pointed out several flaws behind the appointment process of judges.
There are three categories of judges in India — District Judges, High Court Judges, and Supreme Court judges. Recruitment in each category has its set of problems.
In the case of district judges, there are usually two points of entry. The first one is the level of the Civil Judge/Civil Judge Junior Division, (through written examinations and interviews), which is the beginner’s cadre. Later the officers gain promotion to the offices of Senior Civil Judge and then the district judge. The other point of direct entry is at the level of district judge (through written examination and interview), which is open for advocates who have practiced for a minimum number of years (usually seven years).
Sarosij Dasgupta, a lawyer at the Kolkata High Court said that there are irregularities in recruitment across the states resulting in significant vacancies in lower courts.
The center has proposed to conduct an All India Judicial Services Examination to address the issues. First proposed in 1958, AIJS was to ensure an efficient subordinate judiciary, address structural issues such as varying pay and remuneration across states, fill vacancies faster, and ensure standard training across states.
Sandeep*, a lower court judge from West Bengal agreed that a centralized appointment system would help solve pendency by bringing uniformity.
However, some believe that rather than solving existing problems, it might create new challenges. Rangin Tripathy, a professor at the National Law University Odisha, said, “Even though the government is proposing an IAS/IPS-kind of recruitment for judges, the judiciary cannot be compared with the administrative services.”
He added that an IAS or IPS might get away without knowing the language of a particular state but it is a prerequisite for a judge to know the language of the state. Moreover, unlike other administrative roles, most of the proceedings in the lower courts are in local languages. “It would be difficult for a judge to acquire that level of proficiency in a few months,” he said.
However, the AIJS only proposes to allow the entry of judges at the district level. Tripathy said that district judges constitute only a minuscule proportion of the overall new entrants into the judiciary. “I don’t think it (AIJS) would have any significant bearing,” he added.
The appointment to the higher courts has different problems altogether. Usually in High Courts, a bench headed by the Chief Justice appoints judges by promoting district judges or appointing senior lawyers as judges.
A recent parliamentary committee report found that it is difficult to fill the vacancies, as senior lawyers are reluctant to take over the roles of judges in higher courts. It also observed that the judicial system of the country is “plagued with perennial problems of vacancy and pendency”, especially at the high court level, and “there is no end in sight for these problems”.
Some lawyers might not be interested in taking up the roles of judges because there are more financial benefits if they stay in the profession.
Though, it is to be noted that in the past year, 126 appointments were made to the High Courts. Recently, the Chief Justice of India NV Ramana urged the Chief Justices of all the twenty-five high courts to expedite the appointment process to fill the vacancies.
In the Supreme Court, there have been allegations in the past of mistreatment of candidates. Saurabh Kirpal, a lawyer, was recommended for appointment as a judge of the Delhi high court in October 2017. However, his name was not approved for unknown reasons. Former Supreme Court Judge, Justice Madan Lokur even wrote that Kirpal’s sexual orientation could be the reason.
Tripathy said that the collegium acts in such secrecy that it is difficult to suggest changes to the process. He added that there should be more transparency in the process.
“The judges are extremely busy. A constitutional body should be created just to look at all the applications for posts in the higher judiciary,” he suggested.
The Department of Justice says, “As per the Constitutional framework the selection and appointment of judges in subordinate courts is the responsibility of State Governments and High Courts. The Supreme Court has delivered a series of significant decisions on the subject. These include the All India Judges’ Association case where the Supreme Court directed that the number of judges should be increased, in the first instance by filling up the existing vacancies followed by an increase in the judge strength in a phased manner.”
In the Malik Mazhar Sultan case, the Supreme Court devised a process and time schedule to be followed by the High Courts and State Governments for the filling up of judicial vacancies. In April 2012 the Supreme Court issued a direction in the Brij Mohan Lal case requiring that 10% additional posts should be created in the subordinate judiciary.
The Fifteenth Finance Commission had recommended that the government should set up 1800 fast-track courts to dispose of the cases soon. However, the government had said that only 914 were functional in December 2021.
Other issues in the judiciary
Dasgupta said that the primary reason behind the backlog of cases is the lack of courts. He said the people from remote areas of the country are forced to travel hundreds of kilometers to reach the courts. He added, “We should bring courts to people rather than asking people to reach the court.”
The India Justice Report 2020, reinstates Dasgupta’s statements. Even if all the vacancies in courts are filled, the country would still fall short of around 3,343 court halls. The report also points out the lack of spending per capita in terms of the judiciary. For example, West Bengal spends around Rs. 58 per capita on the judiciary. The United States, on average, spends around Rs. 1,800 per capita. This disparity results in a poor infrastructure in courts.
Justice Sandeep* said the lack of infrastructure is a major concern for judges. He said, “The number of support staff for a judge is very less than what is required. There is even a lack of computers, printers, and stationery articles.”
Additionally, judges opine that there should be better coordination between the judiciary and the various departments of the government. Justice Patil said, “If I ask for a file and the responsible department fails to produce it, I would have to adjourn the case to a later date.”
He added that delivering justice is a ‘collective excellence’ and everyone should work together to ensure that justice is delivered swiftly.
Injustice somewhere is injustice everywhere
In several criminal cases, the accused that are remanded to jails have to stay there for longer periods because of the legal logjam. Almost 76 percent of the prison population is still on remand, creating an overcrowding problem in prisons.
Access to justice also involves free legal aid services provided to all. But people in the country are not aware of it. The Member Secretary of Karnataka State Legal Services Authority (KSLSA) said that people in rural areas are not even aware that getting free legal aid is their right. He said that the KSLSA had conducted a six-week-long outreach programme last year. “We reached out to 29,736 villages but the response was not good. There was some increase in people seeking legal assistance but it is not the desired result,” he added.
He mentioned that people are often frightened enough to hire senior lawyers, especially during criminal cases. “We want the police to establish legal services clinics at the police station itself but it is yet to happen,” he added.
In some areas of India, access to legal aid is scarce. In Uttar Pradesh, a legal service clinic services around 520 villages. In Odisha, the number is around 302 villages.
Justice Patil said that sometimes people drop a case simply because of the expenses. He explained, “Think of it like a boxing match. There are two contestants. A well-fed and trained boxer and a trained but skinny boxer. The first contestant would just wear the second participant out while he tries to land punches. Similarly, in Judiciary, the rich would just keep on filing appeals in higher courts to harass people and force them to withdraw their just demands.”
Patil suggested that the judiciary should start providing a litigant with a definite timeframe — how long it would take to get to a verdict in a case. “At least people would be in a better position to prepare themselves for the trial if they know it will end on a certain date,” he said.
Daksha Foundation, a think-tank based in Bengaluru, has published several works on the backlog of cases. Sandhya, a research associate at Daksha said that people like Jogendra Kristo Dutt lose their life before they see their cases being resolved. She said, “We inherited our justice system from the British hundreds of years ago. It’s high time we rethink and reorganize the problematic aspects of it.”