In most years, the annual Joint Conference of Chief Ministers of the States and Chief Justices of the High Courts gets barely a passing mention in media outlets and is forgotten soon after.
This year it was different.
Chief Justice of India (CJI) TS Thakur’s dramatic outburst in April about the “burden” being placed on the judiciary firmly brought the spotlight back on to the issue of judicial delays and backlogs in India. He lamented the delay in trials, which has seen the number of undertrial prisoners burgeon. Trials take decades to complete, he said, pointing to the inadequacy of judicial strength as the prime cause.
In May, Thakur quantified this inadequacy with a claim that India needs 70,000 judges to clear the pending cases.
Where does the 70,000 number come from?
The basis for this, as his speech at the Joint Conference of Chief Ministers of the States and Chief Justices of the High Courts indicates, is the benchmark of having 50 judges per million population.
With India’s population being pegged at 1.2 billion as of May 2016, applying this benchmark, India should have approximately 60,000 judges. As on January 1, 2016, according to Court News, a publication of the Supreme Court of India, there were 16,119 judges in the subordinate judiciary, 598 in high courts and 26 in the Supreme Court.
The latest figures (as on July 11, 2016), as seen from the National Judicial Data Grid and Department of Justice data, tell us that there are 16,438 judges at the subordinate judiciary level, 621 in high courts and 29 in the Supreme Court. All of this suggests that getting anywhere close to CJI’s benchmark of 70,000 or even 65,000 is going to be a herculean, if not impossible, task in the next few decades.
However, a fundamental question needs to be answered: Do we actually need 70,000 judges to dispose of the pending 32 million cases in the Indian judicial system?
The numbers suggest otherwise.
For a start, even with the present strength, courts dispose of almost as many cases as are filed in a given year.
For instance, between July 2014 and July 2015, with a working strength of between 15,500 and 15,600 judges, the subordinate courts in India disposed of about 18,730,046 cases as against 18,625,038 cases which were filed in the same period — just a little more than the number of cases filed.
This must give us pause to question once again the basis for the figure of 70,000 judges.
The Law Commission’s methodology
The origin of the benchmark of “50 judges per million” lies in the 120th report of the Law Commission of India. That report itself is very laconic. It is all of five pages long.
While it suggests rate of pendency or rate of litigation as a basis to fix judges’ strength, it doesn’t actually carry out the mathematical exercise of arriving at a number on the basis of available data.
Rather, the Law Commission looks at numbers of judges in other countries such as the US and decides India should have as many judges as the US at least, without comparing the number of cases in the system, the underlying economy, and the capacity of the judicial system to handle the workload.
The basis to argue for a benchmark of 50 judges per million is flimsy, to say the least.
But how many judges does India actually need?
An alternative methodology
A case cannot be disposed of in a mechanical fashion like a post office would despatch a parcel. One or more hearings have to take place, evidence has to be presented and the judge has to apply her mind. A proper time frame for the disposal of a case has to be fixed. Assuming that an outer limit of three years is fixed, we can assess how many judges we need to dispose of existing cases, whether they were filed a day earlier or 10 years ago.
This methodology was adopted by the Law Commission of India in its 245th report ‘Arrears and backlog: Creating additional judicial (wo)manpower’ and is also routinely used within governments and the judiciary to assess judge strength.
Another way to approach the need for additional judges is to determine what role they are going to play within the judicial system — are they needed to handle the entire incoming load or the existing backlog?
The numbers tell us that the present strength is about adequate to ensure that the number of pending cases doesn’t increase too much on a year-to-year basis. Therefore, it might be the case that what India really needs are more judges to handle the backlog; that is, pending cases which haven’t been disposed of for a long time.
There are two good alternative ways of looking at solving the pendency problem within three years by calculating how many additional judges are required to hypothetically 1) dispose of all cases currently in the system and 2) dispose of only cases that have been in the system for more than two years, since the judiciary appears to be able to deal with the current incoming workload of cases somewhat adequately.
For the purpose of this analysis, we will focus on the district courts.
Data on the time period for which a case has been pending as on December 31, 2015, in the district courts has been obtained from the Department of Justice, which itself obtained this data from the jurisdictional high courts directly.
Looking at the numbers available in Court News, which contains details of the cases filed and disposed of in the trial courts, it is possible to see the average number of cases a judge decides in a year.
Since the manner of counting a case is different in each state, the five-year average rates of disposal in each state vary.
The wide variance seen in the number of cases disposed of per judge can be attributed to the fact that not all states count what is a case in the same way. Some courts count only the main case whereas some others include the interim applications and miscellaneous proceedings within that case separately. Be that as it may, this gives us some idea how many judges each state would need to dispose of its backlog.
Applying this rate to the pending cases, we can figure out how many additional judges are needed, depending on whether we’re looking to dispose of all pending cases in three years or just the cases that are older than two years.
Far fewer judges required than expected
The overall picture suggests that the number of additional judges needed is much lower than the figure cited by CJI.
And in some states, the current strength and rate of disposal is enough to dispose of all cases more than two years old within the next three years, whereas in others, filling up the current vacancies would serve the same purpose. However, there are some states where the sanctioned strength of judges needs to be increased dramatically to be able to do so.
As the numbers show, with either of the objectives, Bihar clearly has the worst problem of lack of judicial capacity in the lower courts whereas Odisha and Jharkhand also have significant problems on this front. Another way of looking at it could also be to show that the judicial systems in these states don’t function very efficiently.
It might mean that the pendency and delay might come down if the courts just functioned more efficiently, with fewer adjournments, more hearings, better infrastructure and support.
Even so, going by the information in Court News, most states would be able to handle the burden of pending cases if they appoint a reasonable number of judges in addition to their existing strength.
Judges alone are not the answer
Even if one were to accept that more judges are necessary, the present quality of lawyers and the appointment mechanisms don’t make scaling up (even to the modest numbers suggested in this article) entirely feasible.
Either the quality requirements will have to be seriously compromised or the terms and conditions of service of being a judge must be vastly improved, involving heavy, recurring expenditure for states.
Other options, such as changes in procedure, improved quality of law graduates, greater use of information technology, alternative dispute resolution must all be explored to ameliorate the situation.
In actually implementing judicial reform, a credible cost-benefit analysis is imperative.
For that we need a dispassionate data-driven approach to the problem and understanding of the limitations of the legal ecosystem we are working in. Adding to the strength of the judiciary is no doubt necessary to some extent, but it should not occupy all the energies and resources available.
(Alok Prasanna Kumar is a senior resident fellow at the Vidhi Centre for Legal Policy. Additional research to this story contributed by Vidhi interns Kanika Sood and Akshay Shandilya.)