The last part of this series on legal reform discusses some solutions to the crisis in dispute resolution. There are some generic solutions that one should mention first. First, there is the natural conclusion that the number of judges and courts needs to be increased. At a Chief Justices? conference in 2004, a committee was constituted to get a fix on the recommended judge/case ratio and a figure of 500 to 600 was suggested for district and subordinate courts. Working with the pendency figures, this translates into an additional 35,000 courts or so, depending on how one derives the number. As mentioned earlier, the total number of courts right now is 12,148. Alternatively, one can work with the judge/population ratio. In its 120th report (1987), the Law Commission stated that the number of judges per million population should increase from 10.5 to 50. These targets were repeated by the Supreme Court. That figure of 10.5 is often quoted, but is somewhat suspect. On 31st December 2007, the sanctioned strength in district and subordinate courts was 15,917. Because of a large number of vacancies (with large numbers in UP, Andhra, Maharashtra, West Bengal and A&N Islands, Gujarat, Karnataka, MP, Bihar and Uttarakhand), the working strength was only 12,549. However, even if one works with the sanctioned strength, the judge/million population ratio is a shade lower than 7, not 10.5. If the 50 target is accepted, this works out to an additional 98,000 judges. On 22nd April 2008, the High Courts had a sanctioned strength of 876 judges and a working strength of 594. Vacancies were concentrated in Allahabad (with a very high number of 92), Bombay and Punjab & Haryana.
In similar vein, one requires additional High Court judges. One might argue that the judge load can be higher than 500 to 600 and fewer courts and judges will suffice. However, a judge load of more than 3,000 is unlikely to be realistic. Working with working strengths rather than sanctioned strengths, the point is that every High Court except Delhi, Karnataka, Gujarat and Sikkim has a judge load higher than 3,000. Orissa has a staggering figure of 13,568 and Madhya Pradesh, Allahabad and Chhattisgarh also have numbers more than 9,000. For lower courts, the number is more than 3,000 in Gujarat, Calcutta and Allahabad. The upshot is that even if one doesn?t require 98,000 judges, one probably requires around 50,000. Per new judge/court that amounts to fixed investments of Rs 2 crore and running expenses of Rs 1 crore a year. Hence, there is a colossal figure of Rs 1,50,000 crore, with annual recurrent expenditure of Rs 50,000 crore.
Second, this raises the issue of financial autonomy for the judiciary. The point about planning and budgetary exercises being undertaken without consulting the judiciary is a valid one, though since 1993, the expenditure on judicial administration has become a Plan subject. Since 1993, there has also been a centrally sponsored scheme (CSS) for improvement of infrastructure. 50% of the expenditure is met by the Centre and there has to be a 50% matching grant from States. These funds are made available by the Planning Commission. It is a separate matter that many State governments have been reluctant to provide the matching grants.
The National Commission set up to review the Constitution also flagged paucity of funds, both through the Planning Commission and the Finance Commission, and recommended planning and budgetary exercises through national and State-level Judicial Councils.
However, accepting that there is a financial problem is one thing. Arguing that there should be complete financial autonomy is another. Without firm evidence that the judiciary has sought to reduce pendency, the argument for financial autonomy will have few takers. For instance, the judicial appointment and promotion process is de facto in the hands of the judiciary. What then explains the high vacancy rates? Alternatively, one can quibble about the precise indicator used to measure judicial productivity, but why is the judiciary reluctant to accept disposal targets? Indeed, this was largely the problem with Fast Track Courts set up through the Eleventh Finance Commission. However, one should also acknowledge that with greater ICT usage, there have been attempts to improve case-flow management.
Third, there are procedural improvements required. While the Code of Civil Procedure was amended in 2001 and 2002, there is still scope for improving orders issued under the code for issues like written statements, costs, examination of parties, framing of issues, evidence on affidavits and ex-parte injunctions. More importantly, these orders grant discretion to judges and there is scope for better use of this discretion. Since two-thirds of the backlog consists of criminal cases, amendments to the Code of Criminal Procedure and the Indian Evidence Act are long overdue. Consequently, there are problems with lack of pre-trial hearings, service of summons, delays in supplying copies to the accused, exempting the accused from personal appearances, delays in framing charges, repeated adjournments, non-availability of witnesses and compounding, not to speak of lack of public prosecutors and problems with the police. But it is necessary to mention that the average conviction rate isn?t 6%, as is commonly believed to be the case. It is between 80 and 82% for SLL laws and around 41% for IPC crimes.
Fourth, while the three points made above are generic, there is a case for focusing on certain types of cases. For instance, the government litigation policy for civil cases crowds out citizens from using the court system, though Section 80 of the Code of Civil Procedure allows for out-of-court settlements. That apart, specific focus on the Negotiable Instruments Act, Motor Accidents Claims Tribunal cases, petty cases, old cases and cases related to excise is possible.
Fifth, generic improvements require large sums of money.
Experiments like Lok Adalats, Fast Track Courts, Family Courts, Mobile Courts, Nyaya Panchayats, Gram Nyayalayas, People?s Courts and Women?s Courts can accordingly be perceived as driven by the motive of getting a bigger bang for the buck. This has been described as load shedding and a hollowing out of the Indian State. That may amount to stating it a bit too strongly. However, there is no getting away from the fundamental constraints with the justice delivery system, with these solutions being no more than add-ons and quick fixes.
As mentioned, the Eleventh Finance Commission provided a grant for setting up Fast Track Courts. With the Thirteenth Finance Commission now constituted, States have no doubt submitted proposals once again. If one scrutinises proposals received from States for the Eleventh Finance Commission, those covered items like buildings, new courts, record rooms, libraries, lock-ups, computers, furniture, salaries, vehicles and the like. History is certain to be repeated. But that?s not the purpose of a Finance Commission at all. Such demands should be routed through State budgets to the Planning Commission.
Litigation, both civil and criminal, is inevitable, perhaps even desirable. However, not all litigation need be prolonged. Generic improvements are required on the supply and demand side and on procedural law, to speed up dispute resolution. Failing improvements in procedural law, which sometimes require legislative changes, either party to a dispute often has a vested interest in prolonging the dispute and can avail of loopholes in the system. However, there is the low hanging fruit of speeding up dispute resolution when both parties want to opt out and want speedy settlement, typified in some recent and successful experiments. That?s the niche Finance Commission funding should be targeted towards.
Plus, as we saw via data in earlier in the series, different States have different priorities. Why should there be a Central scheme that is uniform and standard for all States? Why should States not be asked to determine what they would like to focus on? For instance, Bihar might want to build on the Lok Adalat success, while Kerala might want to build on the Family Court success. This is also likely to increase the probability of linking expenditure with tangible improvements in outcome indicators, something that the Eleventh Finance Commission should have done, but failed to accomplish.
Even if the quantum of expenditure isn?t much, funds must trigger and incentivise reforms.
(Concluded)
?The author is a noted economist