A government with capability and foresight ought to be able to do two things at once, even as it is preoccupied with the Covid pandemic.
Foresight means seeing and acting on the inevitable secondary and future effects of a crisis that is still out of control.
We have seen the health system fail catastrophically, and have watched the economy groan and crumble.
As like of the above two, the court system is not far behind.
Courts are sitting on a pendency bomb and it has never been more urgent to strengthen the subordinate judiciary.
The economic slump caused by the lockdowns has also exacerbated the situation because, for one, defaults on debts and deliverables are rising.
When the courts do eventually reopen, what awaits them?
The courts have not worked with a full caseload since March 2020.
- By and large, over the last year, only very urgent matters were being taken up over videoconferencing.
- Between India’s two waves of Covid, a brief attempt to reopen physically was made by some courts, and a dual-access hybrid system was trialled, where some could attend physically, with precautions, and others could dial in.
- However, the regular caseload was still not being taken up. As a result, pendency has risen precipitously across the judicial system 10.35 per cent at the Supreme Court and, more worryingly, 20.5 per cent in the High Courts and 18.2 per cent at the district level.
- When the lockdown of March 2020 was declared, there were 68 crore cases across all levels; which have already shot up to 4.42 crore.
- By the time physical functioning begins, there will likely be nearly 5 crore pending cases.
Pendency of cases in India:
- The courts are working below their sanctioned strength. As of 2017, High Courts have 403 vacancies out of sanctioned strength of 1,079 judges.
- But still, there are no filling of vacancies. Similarly, subordinate courts have 5,676 vacancies against a sanctioned strength of 22,704 judges. The delay in appointments is increasing vacancies.
- Unfilled vacancies of both judicial and non judicial officers. This increases the burden on existing staff and reduces their productivity.
- 40000 vacancies of non-judicial support staff in subordinate judiciary. Up to 40% vacancies in High court judges. Similar situation in subordinate judiciary.
- Old technologies used in administration increases time of litigation. Process to adopt new digital technologies is slow.
- They are sometimes found indulging in collusive corruption especially at subordinate levels in order to drag the case. Moreover, the lawyers also demand frequent adjournments for not valid reasons.
Need to correct the whole system at Fundamental level:
- The system is broken at a fundamental level and from the bottom, the subordinate courts are the primary interface of the people with the justice system.
- Seventy per cent of prisoners in Indian jails are undertrials, who have never been convicted, and are, therefore, innocent.
- Few pending cases have moved forward over the last year, and adjournments of six months or more are common. It is little wonder that many citizens have lost faith in the courts.
- Across India, there are vacancies against even the sanctioned strengths of courts and in the worst performing states those vacancies exceed 30 per cent.
- District courts across the country also suffer from inadequate infrastructure and poor working conditions, which need drastic improvement, particularly if they are to meet the digital expectations raised by the higher judiciary.
Two solutions offered by voices in the senior judiciary:
Digital functioning and a procedural revamping.
- The first is a mirage. Experience has demonstrated that outside of the Supreme Court and certain High Courts, except for bail and other exigencies, courts are not capable of hearing large numbers of cases virtually.
- There is a yawning digital divide between courts, practitioners and clients in metropolitan cities and those outside.
- Overcoming the hurdles of decrepit infrastructure and digital illiteracy will take years.
- To expect this kind of change overnight across the nation is deluded techno-fetishism.
- Procedural quick fixes are the easiest to accomplish and therefore attractive change at the stroke of a pen.
- However, they often only serve to reclassify matters.
- For, example, the proposal to decriminalise cheque bouncing would certainly get rid of lakhs of cheque bouncing cases, but most would reappear as criminal complaints of cheating, or as civil recovery proceedings.
- Procedural shortcuts can also problematically alter the rights of parties and introduce uncertainties into the law.
The recommendations of the Fifteenth Finance Commission and the India Justice Report 2020 have raised the issue and suggested ways to earmark and deploy funds.
This is also an opportunity to correct historical inequalities. Women judges, and judges from historically-marginalised castes and classes must finally be given a fair share of seats at the table.
These appointments and improvements will require significant but absolutely necessary expenditure.
The only real solution is to substantially increase the strength of the judicial services by appointing more judges at the subordinate level improvements must start from the bottom of the pyramid. This proposal is neither new nor radical.
Strengthening the subordinate judiciary also means providing it with administrative and technical support and prospects for promotion, development and training.
Holding examinations and interviews and appointing more judges and staff is not a simple process and will be nearly impossible until the pandemic has been subdued.
The purse strings must be loosened and necessary policy decisions must be effectuated rapidly at both Centre and state levels, if access to justice is to be meaningful in the years to come.