india

Updated: Nov 15, 2016 10:22 IST

In 2014, the Delhi high court granted divorce to an 85-year-old man after a legal battle spanning 32 years that ruined all hopes of resuming a married life.

“This is an unfortunate case where the parties have spent more than half of their (married) lives in the alleys of the courts,” the high court had said, expressing anguish over the slow process of justice.

But instead of being an exception, this case is part of a larger malaise afflicting the Indian judicial system.

“Delay in disposal of cases, not only creates disillusionment amongst the litigants, but also undermines the capability of the system to impart justice in an efficient and effective manner,” former Supreme Court judge BN Agrawal had said.

At times, delay in justice delivery can have serious consequences as has been witnessed in the case of a minor rape victim from Bareilly who gave birth to an unwanted child after being denied permission to abort her foetus.

Vacancies of judges

With about 30 million cases pending in various courts across the country, Indian judiciary is struggling to clear a huge backlog. If on an average three persons are involved in a case, then there are at least 90 million people waiting for justice. Bulk of these cases is pending in subordinate courts thronged by poor litigants — who bear the brunt of the snail-paced system.Bulk of these cases is pending in subordinate courts thronged by poor litigants – who bear the brunt of the snail-paced system.

Of late, the problem has been compounded by the unprecedented increase in judicial vacancies across the three tiers of Judiciary.

Official figures show, the SC is short of five judges, 24 HCs have 464 vacant judges post and 4,166 at the subordinate courts. Two more SC judges are due to retire this month.

Appointment to the Supreme Court and high courts are done by a collegium of the top court. But judges in the subordinate courts are appointed by the state high court.

The stand-off between the government and the Supreme Court collegium over a memorandum of procedure has made things worse for judicial appointments in the higher judiciary.

Noted senior advocate and former Law Commission member KTS Tusli told HT that the tussle between the government and the Supreme Court has “adversely affected the efficiency of the judiciary”.

“The arrears are mounting and new appointments are not being made,” Tusli said.

While the judiciary has been targeting the government over appointment of judges in the Supreme Court and high courts, it could well be held responsible for the huge vacancy of subordinate court judges.

Judge-population ratio

In 2010, justice VV Rao of the Andhra Pradesh high court said it would take 320 years for the Indian judiciary to clear the millions of pending cases.

This is primarily due to poor-judge-population ratio. With a sanctioned strength of 21,000-odd judges, subordinate courts are under tremendous pressure as almost a quarter of the posts remain vacant, thanks to lack of advance planning and a poor recruitment policy.

Despite the Law Commission and the Supreme Court recommending that India should have 50 judges per one million people, the ratio continues to be abysmally low at 17 judges per one million people.

This is nothing compared to the US, the UK and Australia which have a judge-population ratio of 107, 51 and 41 respectively.

The Department of Justice has said the problem of shortage of judges is being addressed through a two-pronged strategy. Firstly, by filling up the large number of vacancies and secondly, increasing the sanctioned strength of judges.

In April, 2012 the Supreme Court issued a direction for creation of 10% additional posts in the subordinate judiciary.

Why is it getting worse?

Although the number of judges increased six-fold in the last three decades, the number of cases too shot up 12-fold, said a 2012 report of the National Court Management Systems (NCMS).

Even by conservative estimates, the number of cases reaching courts will touch 15 crore, requiring at least 75,000 judges in the next three decades, the report said.

With growing literacy and income, more and more people are likely to approach courts, contributing to the burgeoning backlog of cases.

States such as Delhi, Kerala and Haryana -- which fare better on the socio-economic scales -- have a relatively higher rate of institution than states such as Jharkhand and Bihar which have low institution per annum.

India needs 70,000 judges

Perhaps, it was for this reason that chief justice TS Thakur said the country needed more than 70,000 judges to clear the arrears.

While speaking about the problem, the CJI almost broke down in April in the presence of Prime Minister Narendra Modi and a large number of judges and advocates.

“You can’t shift the entire blame onto judges. If you compare the performance of Indian judges with those in other countries, we are head and shoulders above them. The entire US Supreme Court -– nine judges sitting together -– decides 81 cases in a year. But an Indian judge -- a munsif or a Supreme Court judge – decides 2,600 cases a year,” Thakur said.

The government and the judiciary need to sort out their differences over appointments before the common man loses his faith in the justice dispensation system.

This is the first instalment of our three-part on what ails the Indian judiciary. Look out for the second part which looks at the crumbling infrastructure.