All and sundry concurs that hindrance or retardation in the judicial delivery gives rise to a gargantuan number of our nation’s problems. I opted to seek and assess that how many extra judges would be indispensable to start diminishing judicial backlogs. The 20th Law Commission in its report no. 245 submitted in July 2014, after examining the issue from distinct standpoints concluded that the ‘Rate of Disposal’ per judge per year is the right method for evaluating this issue. In simple terms it presumes that if ten judges are disposing 10000 cases, 12 judges will dispose 12000 cases. This may not be precise, but is likely to be the correct position broadly. I took the data reported by the Law Commission in its report and did a proper examination of its data for 2002 to 2012 of fourteen states for the subordinate courts it had taken. A careful analysis showed that if all sanctioned positions of judges were filled, there would have been no backlog by 2007. This would mean the queue would have disappeared and it would have been possible to devote adequate time to all cases without having to wait. In most cases it should be possible to dispose cases in less than 3 to 6 months. In Australia over 70% of the cases in the Magistrate’s courts are decided within 13 weeks. The Law Commission analysis assumed that the complete backlog must be finished in 3 years and did not take the vacant judicial positions into account. Hence it came to the erroneous conclusion that the strength of the judiciary needs to be doubled.
I decided to also take a look at this issue by analyzing the data given on the Supreme Court’s website at http://www.supremecourt.gov.in/publication for a twelve year period from 2006 to 2017 (both years included) which has a quarterly report for all the courts. This analysis has been done by adopting the same ‘Rate of Disposal’ method accepted by the Law Commission. The summary of this analysis is tabulated below. This reflects that the number of sanctioned judges is adequate and if all the sanctioned judges were appointed, mounting pendency and huge delays would be history.
The number of judges sanctioned in the three levels on 31 December 2017 was 31 in Supreme Court, 1079 in High Courts and 22704 in the Subordinate Courts. The actual number of judges appointed was 25, 676 and 17028 in the three levels. Thus the total number of sanctioned posts were 23814 whereas the working judges were only 17739! Filling about 6000 vacant positions can make the judicial system deliver efficiently.
The increase in pendency in twelve years was about 56 lakh cases whereas the disposal missed due to not filling all sanctioned posts was nearly 661 lacs! The average increase in cases each year is less than 2.5 % of the average number of cases instituted each year, whereas the average vacancy is about 21%!
There can be no justification for keeping judicial positions vacant while the nation suffers because of this neglect. The retirement date of judges is well known. It would be possible to factor in vacancies due to resignations, promotions and deaths by studying the past data. The increase of sanctioned positions can also be forecast early.
The number of registered advocates is about 1.3 million and over sixty thousand graduates emerge each year from our law schools. Even if infrastructure is inadequate it would need to be augmented by only about 20%. Even if we assume that there would be a capital cost of setting up courtrooms this would not exceed about 4 crores per court house which would mean about 24,000 crores only. This is a simple solution and can be implemented very easily. This does not assume any change in the way judges and lawyers function. It only assumes that the extra judges who fill the vacancies will also dispose matters at the same rate as those who are already in the system. While the sanctioned judicial positions are about 19.1 judges per million the actual working strength is only 13.9 judges per million population.
Surely it can be ensured that this process can always be started twelve months earlier and the Collegium recommendations are sent to the government three months before the vacancy occurs. There should be a similar approach for subordinate judges, of ensuring that the selection process is completed in advance.
For the sake of the nation all those responsible must ensure that all judicial appointments are made in a timely manner. An easy solution is available. This analysis suggests that if a simple process of estimating vacancies and ensuring zero vacancy is followed, the sanctioned strength is adequate to dispose the inflow of cases and some backlog. Even if we assume that there would be up to 5% vacancies, the backlogs would go down dramatically. If this simple solution is implemented the problem will move towards a resolution. This is a simple mechanical solution.
If the queue of cases does not keep getting longer, most delays would be reduced considerably. If the queue is very small there is not much scope for delays. If a policy decision were taken to ensure zero vacancy in the judicial positions, it appears that the backlogs would become history and the fundamental right to speedy justice would be actually implemented in our courts. The policy decision could also be made a law with accountability fixed to ensure its implementation.
BY SHAILESH GANDHI, FORMER CHIEF INFORMATION COMMISSIONER