pendency

Vacancies, Representation and Toilets: What Ails India’s Judiciary?

The Supreme Court’s Centre for Research and Planning, in a one-of-a-kind report, has looked at some of the most crucial reasons contributing to pendencies.

Mumbai: The Indian judiciary has, for a long time, faced the challenge of pendency.

It is not uncommon to find pretrial detainees having to wait for over a decade to just have their cases heard before a trial court or a senior citizen fighting a property dispute for 30 or 40 years in a civil court. These agonising delays can be attributed to a series of reasons. The Supreme Court’s Centre for Research and Planning, in a one-of-a-kind report, has looked at some of the most crucial ones among them.

The report, titled ‘State of the Judiciary,’ closely looks at issues of vacancy, lack of diversity in the judiciary, lack of infrastructure for both judges and litigants, and the sub-optimal working conditions of court staff, among others.

As on October 2023, the report points out that there are over five crore pending cases across all higher and subordinate courts in India. To handle them, however, there are only 20,580 judges working in the Supreme Court, the high courts and district courts.

The data (as on October 1, 2023) reveals that as against the sanctioned strength of 1,114 judges in the high courts across the country, as many as 347 positions are vacant.

Similarly, in the district judiciary, out of the total sanctioned strength of 25,081 judges, as of April 2023, the working strength was only 19,781. As many as 5,300 district judges’ positions are vacant.

What has been done

To clear this mounting pendency, over the years, several methods to compute the requisite strength of judges in the district judiciary has been formulated. In 1987, the Law Commission of India, in its report on ‘Manpower Planning in Judiciary: A Blueprint’ recommended the use of the ratio of judges’ strength per million population as the criterion to plan the judicial staffing.

The report stated that:

“If legislative representation can be worked out, as pointed out earlier, on the basis of population and if other services of the State – bureaucracy, police etc. – can also be similarly planned, there is no reason at all for the non-extension of this principle to the judicial services.”

The demographic method, which is a most common method, suggested an increase in the ratio of 10 judges per million people to 50 judges per million people. This was endorsed later by the Supreme Court in in 2002 in the All India Judges Association v. Union of India case.

Similarly, the Law Commission of India, in 2014, suggested the Disposal Method. It recommended that the total number of judges required to cut down the pendency can be calculated by computing the number of judges required to clear the existing backlog and the new filings of cases, based on the average disposal of cases per judge.

From time to time, newer suggestions to overcome pendency have been given by different committees.

From the date of notification of number of vacancies by the high court to the actual date of joining, the process – as prescribed in the Malik Mazhar judgment – should take about 273 days.

The recent Supreme Court study, however, has found that only nine states adhere to the timeline.

Bihar, for instance, took 945 days to complete the last recruitment process of Civil Judge (Junior Division), computed from the date of advertisement (March 9, 2020) to the date of final result (October 10, 2022). This delay, the high court of Patna attributed to the COVID-19 pandemic. But the report points to similar delay even before the pandemic. The recruitment process of 2018-19 in Bihar took 463 days.

The apex court’s report has identified litigation (candidates challenging different stages of the examination) and different recruitment authority as the primary cause for the delay.

Inclusivity

In a pluralistic democracy like India, where there is vast social, geographical and religious diversity, a representative and inclusive judiciary is imperative to repose faith in the public in the justice system. The report analyses the representation of female judges in the Supreme Court, high court and district courts. Alongside gender, the report also examines the representation of those from the marginalised sections in the district judiciary.

Also read: ‘Harassment’, Pleas and a Petition Dismissed in 8 Seconds: Behind Woman Civil Judge’s Letter to CJI

Although there are no provisions for reservation on the basis of caste, class or gender in the appointment of judges to the Supreme Court and the high courts (which are made under Articles 124 and 217 of the Constitution of India respectively), the Supreme Court Collegium has clearly laid down ‘diversity’ as one of the factors to consider in appointing judges to the apex court. The diversity consideration in itself has not yielded the desired result in the higher judiciary.

Here are some important figures.

India’s highest court presently has only three female judges (9.3%) out of its working strength of 32 judges, as of October 1, 2023.

The situation is just as grim in the high courts. Out of 767 permanent and additional judges in the high courts across India, only 103 are female judges (i.e 13.42%).

The district judiciary, however, shows considerable improvement with the strength of 36.33% female judges.

The appointment of judicial officers in the district judiciary is the responsibility of the state governments and respective high courts. The report has found that states like Andhra Pradesh, Bihar, Chhattisgarh, Karnataka, Odisha, Rajasthan, Tamil Nadu, and Uttar Pradesh provide reservations for women in judicial examinations to promote gender diversity. As many as 14 states (of the 16 examined as a part of the report) have appointed more than 50% female judicial officers in the last civil judges (junior division) recruitment examination. While Sikkim selected 80% female officers, in Andhra Pradesh and Uttarakhand, 65% and 63.6% respectively, female judicial officers were selected.

It is not just the lack of adequate gender representation in judiciary that the states need to focus on but also the complete disregard shown towards the needs of the existing female judicial officers.

Toilets

One such instance that the report looks at is the absence of female- friendly toilets in the Indian courts.

The report says a mere 6.7% of toilets facilities in courts across India are “female- friendly” with provisions like sanitary napkin-vending machines set up in them.

While in the high courts, the report has found, the number of washrooms is adequate with respect to the current strength of judges. This count, according to the study, needs to be increased with respect to the sanctioned strength. The real concern, however, is the condition of the lower judiciary. The report, terming the condition of toilets in the lower courts “deplorable”, states:

“It is a ground reality that court complexes at the district level not only have inadequate washrooms but at times, have washrooms that are dysfunctional, with broken doors and do not have regular supply of running water.”

As many as 12 high courts submitted that there is a “stark inadequacy” of toilets for judges, staff, lawyers and litigants in the district judiciary. Chief Justice of India D.Y. Chandrachud too had flagged the issue of lack of proper toilets in court rooms in one of his recent speeches. The report also pointed at the need to build toilets bearing in mind the need to also accommodate the transgender community.

Caste

Similarly, to study the caste diversity in the lower judiciary, the report looks at six states namely, Bihar, Gujarat, Madhya Pradesh, Rajasthan, Haryana and Uttar Pradesh. In these states, out of 1,389 seats advertised for the Civil Judge (Junior Division) exam recently, 766 posts were advertised for the reserved category, which includes Scheduled Castes (SCs), Scheduled Tribes (STs), Other Backward Classes (OBCs), Economically Weaker Section (EWS), and others, as applicable to each State.

Also read: More Than Three in Four High Court Judges Appointed Since 2018 Upper-Caste: Law Ministry

The report has revealed that in the six states examined, 37.5% seats of the posts advertised for the reserved category remained unfilled. These unfilled vacancies contribute to 66.3% of the overall seats that remained unfilled in the last recruitment exam of the Civil Judge (junior Division).

Another important data point that the report has thrown light on is the caste breakup of the recent recruitments carried out in the high courts. As many as 492 out of the 650 judges appointed between 2018 to 2023 belong to the General Category, the report reveals.

“At a time when judiciary needs maximum judge strength to cut down the mounting arrears, unfilled vacancies, especially from the reserved category, calls for sincere action. It is a positive obligation upon the state to take affirmative steps to ensure that the marginalised sections are enabled and empowered enough to be participative in the maintream decision-making process in society,” the report says.

Overcrowded Prisons; Cases Pending Per Judge Rising: India’s Criminal Justice System in 9 Charts

While the representation of women judges in the subordinate courts is rising, the same cannot be said about the high courts. Between 2020 and 2022, the high courts saw a little less than two percentage point increase in women’s representation.

New Delhi: The third India Justice Report, released on Tuesday (April 4), analyses the changes – both positive and negative – in India’s justice delivery system across four parameters: police, judiciary, prisons and legal aid. The report uses statistics to highlight whether states are living up standards set nationally and internationally.

Staff vacancies were found to be an issue across these arms. Low budgets – or budgets that are not spent – too mean that the system is not operating at the capacity needed or planned for.

Below, in nine charts, are some of the salient findings of the report – overcrowded prisons, not enough training centres for police personnel, a rising number of pending cases per judge, and more.

1. Policing concentrated in urban areas

While 60% of India’s population lives in rural areas, the police forces are concentrated largely in urban areas. This is true in several states (but not all) – the population covered by each thana is far higher in the rural areas. “Only 6 states/UTs—Goa (140), Tamil Nadu (137), Bihar (125), Kerala (82), Puducherry (21) and Lakshadweep (1)—meet the National Police Commission’s 1981 recommended area coverage of 150 sq km for a rural police station,” the report notes.

Source: IJR 2022

2. Police training academies are overloaded

For 26.88 lakh police personnel, India has only 211 training schools and academies. While research from across the world suggests that training across fields – including sensitisation, information on legal changes and courses for specialisation – cannot be a one-off event for police personnel. However, with not enough training institutes and the ones that do exist training an average of 12,744 people every year, the scope for this is limited.

In most states, a very small part of the total police budget is spent on training.

Source: IJR 2022

3. Prison overcrowding is getting worse

“Prison populations have risen steadily from 4.81 lakh (2019) to 4.89 lakh (2020), and 5.54 lakh in 2021: while the number of people admitted to 1,319 prisons during 2021 increased by 10.8 per cent to 18.1 lakh from 16.3 lakh the year before,” the IJR notes. However, with infrastructure not keeping up, prison overcrowding – already a major problem – is only getting worse.

As of December 2021, the average prison in the country has an occupancy rate of 130%. In some states this number is far worse; in Uttarakhand, for instance, in December 2021, the occupancy rate was 185% – there were 6,921 incarcerated people in prisons that were supposed to have 3,741 people.

“Nationally, roughly 30 per cent (391 prisons) record occupancy rates of 150 per cent and above, and 54 per cent (709 prisons) run above 100 per cent capacity. More than half of the prisons in 23 states/UTs are overcrowded,” the report notes.

Source: IJR 2022

4. Number of undertrial prisoners increasing

Currently in India, 77% of the incarcerated population comprises undertrials – which means they haven’t been convicted of a crime. This number, according to the IJR, has nearly doubled since 2010 (going from 2.14 lakh in 2010 to 4.3 lack in 2021).

“Between 2017 and 2021, all states/UTs, with the exception of Arunachal Pradesh, Meghalaya, Nagaland and Puducherry, showed an increase in undertrial population. Among the 18 large and mid-sized states, Punjab recorded the highest increase, at 3.75 percentage points, while among the seven small states, Goa showed the highest increase of 5.23 percentage points,” the report states.

The period of detention of undertrials is also increasing, indicating that trials are taking longer or bail is being granted in less cases.

Source: IJR 2022

5. Cases pending per judge rising

Cases taking a long time to come to a conclusion is not a new problem in India; much of this has also been seen as an outcome of judicial vacancies across the country.

“As of December 2022, a total of 4.9 crore cases remained pending across high courts and district courts in the country. As many as 1.9 lakh cases have been pending for over 30 years and 56 lakh cases for more than 10 years. On average, 49 per cent and 29 per cent of these cases are pending for more than 5 years in the high courts and lower courts respectively. In addition, there are around 70,000 cases pending in the Supreme Court,” the IJR notes.

“At high court level, Uttar Pradesh has the highest average pendency; cases remain pending for an average of 11.34 years, and in West Bengal for 9.9 years. The lowest average high court pendency is in Tripura (1 years), Sikkim (1.9 years) and Meghalaya (2.1 years),” it continues.

Source: IJR 2022

6. Share of women high court judges remains low

“Emblematic of the glass ceiling, there are more women judges at the district court level than at the high court level. Nationally, women account for 35 per cent of the total number of judges at this level. But distribution across states is uneven. Among the small states Goa, with 70 per cent, has the highest percentage, followed by Meghalaya (63 per cent ) and Nagaland (63 per cent ). Among 18 large and mid-sized states, Gujarat (19.5 per cent) has the least and Telangana (52.8 per cent) the largest share of women judges. In other large states like Jharkhand and Bihar, women judges accounted for 23 per cent and 24 per cent of all judges respectively,” the report notes.

Source: IJR 2022

7. No state/UT fulfilled all quotas for SC/ST/OBC judges at district-court level

There is no state-wise data on caste diversity amongst high court judges. However, at the district-court level, the IKR has found that “no state/UT could fully meet all its Scheduled Castes, Scheduled Tribes and Other Backward Classes quotas”.

“Nine states/UTs met their Other Backward Classes quotas. At 50 per cent, Tamil Nadu has the second highest percentage of reservation in this category, fulfilling its quota completely. Chhattisgarh fulfilled its quotas for Scheduled Castes and Other Backward Classes and Telangana fully met its quota for Scheduled Tribes and Other Backward Classes. Ladakh, Manipur, Chhattisgarh and Gujarat exceeded their Scheduled Castes quota,” the report noted.

“Uttarakhand, Telangana and Arunachal Pradesh filled their Scheduled Tribes quotas. Himachal Pradesh (91 per cent) is closest to fulfilling its Scheduled Tribes quota requirements, while Gujarat could only fill 2 per cent of its Scheduled Tribes quota. Eight states/UTs have less than 10 per cent Scheduled Tribe judges and 3 states/ UTs have no reservations for Scheduled Tribes.”

Source: IJR 2022

8. Allocation to legal aid increasing, but no state/UT used its entire budget allocation

Free legal aid is essential to a well-functioning criminal justice system, particularly in a country like India where access to justice is unequal and severely hindered by the lack of resources.

Funding for legal aid comes from both NALSA, a central body, and state finances. “NALSA’s funds are typically for activities that include conducting Lok Adalats, mediation, training programs and honorariums to lawyers, paralegals, mediators and judges presiding over Lok Adalats, while state contributions primarily go towards infrastructure, personnel and administrative expenses,” according to the IJR.

“Over the last two years, the overall allocation for legal services has increased substantially,” the IJR found. “NALSA’s disbursement to states increased by 46 per cent to 144.3 crore in 2021–2223 (from Rs. 99 crore in 2020–21).24 For the most part, state contributions to the legal aid budgets also increased.”

“Curiously, the overall utilisation of NALSA funds reduced in 2021–22, and of the Rs. 183 crore (1.83 billion) allotted to states, Rs. 138 crore (1.38 billion) remained unutilised. Only Jharkhand and Manipur utilised 100 per cent, followed by Arunachal Pradesh and Mizoram (97 per cent each), while Odisha and Andhra Pradesh could manage only 50 per cent. Goa with 49 per cent utilised the least,” the report notes.

A majority of the states utilised more than 50% of their state-sanctioned budget, but this too wasn’t true everywhere.

Source: IJR 2022

9. Implementation of victim compensation schemes remains subpar

One of the jobs of the legal aid system is to ensure victim compensation, through schemes meant to support those who have suffered loss or been injured due to a crime. Comprehensive guidelines exist on how these schemes should be implemented, yet their implementation “remains subpar”, according to the IJR.

“Between 2016–17 and 2021–22, State Legal Aid Service Authorities altogether received 97,037 applications seeking compensation. Of these, they disposed of only 64,333 (66 per cent) applications across all states,” the report notes.

Source: IJR 2022

Political Opposition Is Translating Into Hostility, Not Sign of Healthy Democracy: CJI Ramana

Speaking at an event in the Rajasthan assembly, the Chief Justice of India added that the space for the opposition is “diminishing”.

New Delhi: Chief Justice of India (CJI) N.V. Ramana on Saturday said that political opposition “translating into hostility” – which the country is currently witnessing – is not a sign of a “healthy democracy”, adding that the space for the opposition is “diminishing”.

According to the Indian Express, addressing an event at the Rajasthan assembly, the country’s top judge said that a strong parliamentary democracy “demands strengthening the opposition as well”. He once again raised the issue of laws being passed now “without detailed deliberation and scrutiny”.

“We must note that India was meant to be a parliamentary democracy and not a parliamentary government, for the core idea of democracy is representation. Dr (B R) Ambedkar cautioned that by parliamentary democracy, we can never infer ‘rule by majority’,” he said, according to IE.

Majority rule is “untenable in theory and unjustifiable in practice”, he added. “The framers decided to opt for a representative democracy. A representative democracy is about effective representation. It is where the minority is not overwhelmed by the majority,” CJI Ramana said.

A diverse opinion enriches polity and society, he said, adding that political opposition should not translate into hostility. “These are not signs of a healthy democracy,” he said, according to IE.

“In an ideal world, it is the cooperative functioning of the government and the Opposition which will lead to a progressive democracy. After all, ‘Project Democracy’ is a joint effort of all the stakeholders,” he added.

Raises issue of undertrial prisoners

Addressing the All India Legal Services Authorities’ Meet earlier in the day, Ramana also expressed concern over the high ratio of undertrial prisoners, adding that “process is the punishment”.

“Out of 6.10 lakh prisoners in India, around 80% are undertrial prisoners. We should question procedures which lead to such prolonged incarceration in huge numbers without a trial,” he said, according to IE.

“In our criminal justice system, the process is the punishment. From hasty, indiscriminate arrests to difficulty in obtaining bail, the process leading to the prolonged incarcerations of undertrials needs urgent attention,” he said.

Speaking at the same event, Union law minister Kiren Rijiju flagged the backlog of 5 crore cases pending in courts. He said the target should be to clear 2 crore cases in two years. “There should be good coordination between the government and the judiciary so that there is no delay in achieving the objective of delivering justice to people,” he said.

“The first question I receive wherever I go is what steps the government is taking to ensure that pendency comes down. This is a challenge and this meeting is a good occasion to discuss it,” Rijiju said.

Responding to the minister’s concern, CJI Ramana said the non-filling up of judicial vacancies was the main reason for the huge pendency of cases.

“I am glad he (Rijiju) has taken up the issue of pendency. We judges also, when we go outside the country, face the same question. You all know the reasons for pendency. I indicated it in the last chief justices-chief ministers conference. You all know the main reason is non-filling of judicial vacancies and not improving the judicial infrastructure,” he said.

Also Read: What Is Stopping Our Justice System From Tackling the Cases Pending Before Courts?

He said the National Legal Services Authority is a success story that settled around 2 crore pre-litigation cases, adding that one crore cases were settled last year and it is a great achievement and best model.

The CJI said judicial officers and judges work hard and apart from their daily judicial duty, they work extra hours on Saturdays and Sundays. He said the judiciary is always ahead in trying to resolve all these issues.

“My request is that the government has to take up this pendency of filling up of vacancies as well as providing infrastructure. NALSA is the best model, it is a success story. So on the same lines, we suggested a judicial infrastructure authority in the last chief justices conference. It has unfortunately not been taken up. I hope that the issue will be revisited,” he added.

Agniveers May Be Controversial But Our Judicial System Could Do With Nyayveers

It may not be a bad idea to use the ‘additional judges’ route to appoint judges for a fixed term of three or four years with the clear understanding that the purpose of such appointments is to clear the judicial backlog.

For me personally, the most controversial part of the great epic Mahabharata is when, at Agni’s behest, the Pandavas torch the Khandav Forest and destroy her fragile ecosystem – plants, animals and snakes. In fact, it is not coincidental that an act of revenge by Takshaka, the snake, is traceable to this episode which almost brings an end to the Bharata dynasty.

Be that as it may, agni or fire, is now engulfing large parts of India this summer as the Modi government’s latest game changer – the Agnipath scheme – a short service commission where persons shall be recruited for four years to serve in the armed forces with no pension upon completion of the limited tenure has met with violent resistance from hundreds of unemployed aspirants across the country. Many of these agitators have resorted to wanton violence such as burning of trains and buses, and even stone pelting.

In the midst of this, I received a WhatsApp forward of a tweet by an Army veteran suggesting sarcastically that the government extend this hare-brained scheme even to the judiciary.

So let us indeed consider whether an Agnipath equivalent would really be such a bad idea for the judiciary, especially given the woeful status of our case pendency and unfilled judicial vacancies. As of June 1, 2022, of the total sanctioned strength of 1,108 judges in high courts across India, 400 were vacant, which comes to about 36% of the total. Needless to say, this has a direct effect on the 59,70,487 cases pending in the high courts, of which almost 71% are still at the admission stage. The total figure for pendency at the Supreme Court stands at 70,852, and there are at present two vacant positions.

Also read: COVID-19 Increased Pendency of Cases at All Levels of Judiciary

Article 127 of the Constitution of India permits the Chief Justice of India (CJI), with the previous consent of the President of India and after consultation with the Chief Justice of the concerned high court, to appoint a high court judge as an ad hoc Supreme Court judge. A judge-made law has subjected this power of the CJI to the consensus of the collegium. Under Article 128 of the constitution, the CJI may also call upon retired judges of the Supreme Court to “sit and act as a Judge of the Supreme Court”.

Article 224 of the constitution, as it originally stood, permitted that appointment of retired high court judges as “ad hoc judges” to address pendency of cases. However, this was felt “neither adequate nor satisfactory” a solution. Many high court judges were also reluctant to take on such assignments as, upon retirement, if they were to make a comeback as an “ad hoc” judge they would be reduced to the status of the junior-most judge of the court. By the 7th amendment, the “ad hoc” judges were given a quiet burial in 1956. Instead, Article 224 was recast to provide for appointment of “duly qualified persons” as “additional” and “acting” judges”. Such judges were are not permanent and were expected to aid in the clearance of judicial backlog.

Additional judges are normally being appointed across high courts, for periods not exceeding two years, mostly when the sanctioned strength of permanent judges is fully occupied. As and when vacancies arise, their appointments are confirmed permanently. A recent exception to this convention was seen in the case of Justice Pushpa Ganediwala, who had delivered the “skin to skin contact” controversial verdict in a child abuse case, where the Supreme Court declined to confirm her appointment as a permanent judge of the Bombay high court.

In 1963, in a re-think, the 15th Amendment inserted Article 224A in the constitution, which again permitted the Chief Justice of the high court, with the previous consent of the President, to request a retired judge of the same or any other high court to officiate as an ‘ad hoc’ judge.

CJI N.V. Ramana administers oath of office to the judges in the Supreme Court Auditorium, in New Delhi, Tuesday, Aug 31, 2021. Photo: PTI

There have been just three occasions when Article 224A was invoked. Justice Suraj Bhan of the Madhya Pradesh high court was appointed as an ad hoc judge on November 23, 1972, having demitted office on February 2, 1971, for a period of one year or till the disposal of election petitions entrusted to him, whichever was earlier.

Justice P. Venugopal of the Madras high court was, close to his retirement, appointed to a Commission of Inquiry to inquire into certain incidents that took place in Coimbatore town on July 23, 1981, and again appointed to a one-man commission to inquire into incidents of communal riots by order dated March 22, 1982. He was appointed to the post of ad hoc Judge in the year 1982 and yet again his term was renewed for a period of one year from August 19, 1983. More recently, Justice O.P. Srivastava was appointed as an ad hoc judge in the Allahabad high court, in 2007. He was one of the Members of the Special Bench constituted for hearing of the Ayodhya matter with the avowed object of facilitating continued and continuous hearings of this significant litigation.

On the issue of pensionary benefits, in Justice P. Venugopal v Union of India, (2003) the Supreme Court held that the period of ad hoc judgeship would not be added to compute the pensionable service. So, clearly, an ad hoc judge would not be entitled to further pensionary benefits.

The Allahabad high court in Indian Society of Lawyers v President of India, (2011) has held that as the President does not appoint an ‘ad hoc’ judge but only gives his consent for the same, the process of appointment of a regular high court justice would not apply in case of an ad hoc judge.

On April 20, 2021, a bench of CJI Bobde, and Justices Kaul and Surya Kant, in Lok Prahari v Union of India, passed a detailed judgement on activation of the machinery under Article 224A for appointment of ad hoc judges. While leaving it to the discretion of the high court judge concerned, the court gave broad guidelines on circumstances that could serve as ‘trigger point’ for appointment of ad hoc judges.

These include:

(i) vacancies reaching 20% of sanctioned strength;

(ii) cases of a particular category pending for more than 5 years;

(iii) 10% of backlog of pending cases being over 5 years; and

(iv) percentage of the rate of disposal of cases being lower than the institution of cases.

The court ruled that ‘past performance of ‘recommendees’ in both quality and quantum of disposal’ would be considered. It suggested that a period of two to three years would be a suitable tenure for such ad hoc appointments. It suggested that the number of ad hoc judges should be two to five per high court. However, such ad hoc judges, once appointed, could not perform any other legal work – advisory, arbitration or appearance. The process of appointment again would require to be routed through the collegium process, though the court was of the view that the delays associated with the regular judicial appointments would not be applicable.

Given the lucrative post retirement assignments, such as arbitrations, that judges usually get flooded with these days, and given that the collegium system is plagued with delay and palace intrigues, subjecting the ad hoc judges to a bar on arbitrations and requiring their appointments to be routed through the collegium system has ensured that this initiative remains a non-starter.

Media personnel at the premises of the Supreme Court. Photo: PTI/Kamal Kishore.

Now, coming to an Agnipath type of initiative for the judiciary, given that most courts are functioning way below their sanctioned strength, and given that the sanctioned strength had also been determined years ago, it may not be a bad idea to use the additional judges route to appoint judges for a fixed term of three or four years with the clear understanding that the purpose of such appointments is to clear the judicial backlog.

After all, almost 44% of all cases in the high courts have been pending for over five years. The COVID times have added immeasurably to this burden. It is humanly impossible to expect judges to hear and finally adjudicate more than 10-15 effective matters a day. The sad reality is that more than 60-70 cases are listed daily and in most cases and, in most cases, matters are required to be adjourned by several months simply on account of paucity of time. In fact, many have predicted that it would take several decades to dispose of the pending cases of many high courts and that too provided no fresh cases were instituted any further.

Also read: What Is Stopping Our Justice System From Tackling the Cases Pending Before Courts?

The anxiety of the government in matters of judicial appointments is understandable. The present government is very cautious in matters of judicial appointments and would not be disposed to entrustment of politically sensitive matters for adjudication to judges who have not met its strict background checks. This can be obviated by formulating a scheme under which these additional judges are selected as per their sectoral expertise and allotted only routine non-controversial cases such as labour disputes, service cases, civil revisions, matrimonial appeals, rent control, etc.

There is a pool of natural talent in the bar and many lawyers with sufficient seniority and experience would be more than willing to offer themselves for the cause of attacking the judicial pendency. There are many senior lawyers, who may be in the verge of winding down an active law practice and they may not be averse to contributing to the Bar and the cause of justice by volunteering to serve as tenure judges for limited periods. The clear understanding should be that this is only a temporary arrangement and the appointees should clearly not look for any extensions or permanent accommodation.

Sadly, even as I pen these words, I am conscious that the executive and the judiciary are risk averse and thus not receptive to any out of the box solutions. India’s justice delivery system stands sentenced to a long lonely road.

Sanjoy Ghose is a senior advocate.

The Attorney General Is Right, Justice Delivery in India Is Indeed Looking ‘Hopeless’

There are a few steps might mitigate the problems of millions of litigants.

Thank you Attorney General K.K. Venugopal (respectfully and popularly referred to as KKV) for speaking your mind and addressing the “hopeless situation” caused by the pendency of millions of cases in the high courts and the district courts. An update: the number of pending cases at the time of writing has crossed 48 million.

You are right sir, the situation is hopeless. Justice P.N. Bhagwati said in his Law Day address in 1985 that our judicial system is on the verge of collapse. In 1996, Justice Bhagwati said that the Supreme Court of India is the most powerful court in the world. I wonder what made him change his opinion. Assuming what he said in 1996 is correct, please compare it with the situation today.

Recently, Chief Justice of India N.V. Ramana addressed a very high powered conference in which he said that decisions of the courts are “not implemented by government for years together” resulting in a rise in contempt of court petitions. Has our justice delivery system now collapsed or is it teetering and still on the verge of collapse? I am reminded of Mark Antony’s: “O, what a fall was there, my countrymen!”

I believe the staggering number of pending cases and an equally staggering number of judicial vacancies are only the symptoms of a deep-rooted malaise. Judicial vacancies are blamed for the pendency of cases, ignoring the Medusa-like head of a powerful political executive that is reducing Lady Justicia literally to a statue, despite her blindfold. Let me address these concerns.

Judicial vacancies

The recruitment of judicial officers at the district level is through an examination conducted under the aegis of the high court. The Supreme Court has laid down a yearly calendar of events for the recruitment process with timelines. This is undoubtedly well-intentioned, but does the Supreme Court have administrative control over the high court through prescriptive guidelines? Do we know how many high courts are actually following the schedule? I would be surprised if even a handful are following the mandate. The fault lies with the system that is not able to ensure filling up vacancies.

The situation with regard to high court vacancies is worse. This is where the almighty political executive comes into the picture. The CJI rightly said that judges do not appoint judges – they only recommend candidates for appointment. The president makes the appointment when the papers are put up to him for issuing the necessary warrants by the political executive. This can take months and years in most cases, because of government’s whims and fancies. Recently, Aditya Sondhi of the Karnataka high court withdrew his consent for appointment after having waited for a year for the government to decide. Eventually, the government took a decision, but bypassed the recommendation of the Supreme Court. Their’s not to reason why.

Also read: Chief Justice N.V. Ramana Must Finish What He Has Begun

The transparent mystery of Saurabh Kirpal’s appointment is too well known to be repeated. The Supreme Court has not been able to assert itself in these and many other recommendations and reiterations, thereby exploding the ‘judges appointing judges’ myth. Worse, the reins of appointment are now truly and fully in the hands of the government plucked from under the nose of the Supreme Court. Who cares?

The play of whims and fancies of the government in the matter of appointment to the Supreme Court is evident from some fairly recent cases. It’s great that some recommendations are processed within a couple of days, as has happened recently. But why did it take several months to process the appointment of Justice K.M. Joseph or that of Justice Indu Malhotra? Is some kind of subtle message being conveyed to the judiciary? I hope not.

Appointment of judges to the high courts and the Supreme Court are regulated by the Memorandum of Procedure. The government says that the memorandum is not yet final and of course nothing is binding on the government. Has any serious attempt been made to finalise it? Let me tell you, the objections of the government are frivolous to say the least and bizarre in one respect. A clause seems to suggest that the government may veto a recommendation if the person recommended is a national security risk. In other words, the high court and the Supreme Court collegium are capable of recommending (according to the government) a candidate for appointment as a judge who is a national security risk. Can you believe it? Is the government telling us that the high court collegium of three judges and the Supreme Court collegium of three judges are so naïve (or perhaps silly) that they will recommend a person for appointment to a constitutional position even though he or she is a threat to national security?

But in the meanwhile, contrary to the criteria laid down in the Memorandum of Procedure, the brother of a judge in the Supreme Court was appointed as a judge of a high court, indicating that some judges are more equal than others.

After a high court judge is appointed, he or she is liable to be transferred overnight for no rhyme or reason. The shallow mystery of Justice S. Muralidhar’s near midnight transfer is well known and bears no repetition. Justice Akil Kureshi was not allowed to join as chief justice of the Madhya Pradesh high court. Any reason? To make matters worse, the earlier practice of giving “joining time” to a transferee judge is dispensed with. So, on receiving a transfer order, a transferee judge is immediately incapacitated from performing judicial functions until he or she joins the court to which the transfer has taken place – some kind of a compulsory wait.

With instances of this nature occurring with considerable frequency, is it any wonder that the trend (anecdotally) is for meritorious candidates declining to accept an offer of appointment made by the chief justice of the high court? With the Supreme Court not asserting itself in a crucial matter of appointment of judges touching upon the independence of the judiciary, is it any wonder that orders passed by the courts are “not implemented by government for years together”? Who cares?

If this state of affairs continues (and it’s not likely to improve) the problem of judicial vacancies will continue to bedevil us or we will have ‘compromise candidates’ as judges, tending towards the lowest common denominator. That is frightening.

Pendency problem

The problem of plenty (of cases) is not necessarily linked to judicial vacancies. A former CJI boasted that he ensured there is no vacancy of judges in his parent high court. He was right, but did it have any impact on the pendency of cases? A casual study of the information available in the National Judicial Data Grid reveals that it made no positive difference to the pendency of cases in that high court.

I think we have enough judges already to achieve 100% clearance rate, even if existing vacancies are taken into account. But we will never be able to clear the backlog of 48 million cases, unless we have the equivalent of a Hercules cleaning the Augean stables. Determination to clear the backlog is required, but there does not seem to be any movement in that direction, except cosmetic changes and ad hoc courts being established. That is not the solution, but who cares?

Let me frighten you with some figures. The overall pendency of cases in the high courts and district courts has crossed 48 million, and the number is rising – five million plus in the high courts and 42 million plus in the district courts. My guess is that the total will cross 50 million before the end of the year. Of these, more than 30 million are criminal cases pending in the district courts, roughly 71%. No wonder our jails are overcrowded with 76% undertrial prisoners and forgotten convicts languishing beyond the maximum punishment. More than 3.5 million cases are pending for more than 10 years. What kind of speedy justice are we aiming for, and how?

The solution? Even though I agree that the justice delivery system is in a “hopeless situation” and beyond repair, a few steps might mitigate the problems of millions of litigants. First, every case filed by the Union of India or any state government should be accompanied with a demand draft of Rs 1 lakh to take care of litigation expenses of the citizen who is dragged to court. If the court declines to issue notice to the citizen, the amount should be kept in a reserve fund for future utilisation. The governments must pay, period. The governments must also pay Rs 1 lakh for every adjournment sought – after all, the litigant has to pay his or her lawyer an appearance fee even if the case is adjourned. Actually, even governments pay their lawyers a fee for every adjournment.

The CJI has said that governments are the biggest litigants, accounting for nearly 50% of pending cases. If courts are imposing heavy costs on individual litigants, why are governments or government departments treated with kid gloves? Governments must be held accountable for litigation. The sooner the courts realise it, the better.

Second, we need to efficiently utilise our existing resources and also put better systems in place. For example, to avoid overcrowding in prisons, how often have we sincerely applied the ‘bail not jail’ principle? For getting rid of petty cases, how often have we resorted to plea bargaining, a significant amendment to the Criminal Procedure Code? The provisions of the Probation of Offenders Act are hardly ever taken into account during the sentencing process. No progress has been made in case management despite pioneering efforts of Justice M. Jagannadha Rao as chair of the Law Commission of India. There is no discussion on time management and so the Union of India finds that several months is not enough time to respond to petitions challenging the sedition law or issues of marital rape.

Third, it is time to introduce accountability for executive action. The law enforcement agencies are tending to become hatchets for the government of the day. The Delhi high court passed a scathing judgment against the Uttar Pradesh police for picking up a person from Delhi and later fabricating documents to show that his arrest was in UP and lawful. The Supreme Court granted bail to Munawar Faruqui, arrested in Madhya Pradesh, because the guidelines in Arnesh Kumar were not followed. The Assam police picked up Jignesh Mevani from Gujarat to put him in jail for a tweet. On being granted bail, a bizarre allegation of molesting a policewoman was made up to re-arrest him. Punjab police come to Delhi and took away Tejinder Singh Bagga from right under the nose of Delhi police. Then the Haryana police joined the party and stopped the Punjab police from taking Bagga to Punjab (perhaps by detaining them) and the Delhi police somehow managed to bring Bagga back to Delhi. The Rana couple in Mumbai were arrested for sedition because they threatened (but later backed off) to recite Hanuman Chalisa. On the other hand, no action is taken against bigwigs who want bullets to be fired and give calls for genocide, if not some kind of ‘cleansing’. The police see no hate in this, but when Dr Kafeel Khan spoke of peace and harmony, he was detained under the National Security Act. Since when did talk of peace and harmony become a threat to national security? Please tell me, does anybody know what’s going on?

Yes KKV, the situation is hopeless. Let’s do something about it. I think it’s too late already, but am willing to join hands with you and give it a try.

Madan B. Lokur is a former judge of the Supreme Court of India.

Days After SC Rebuke, Centre Clears Appointments of 6 to Armed Forces Tribunal

The moves comes after the Supreme Court said the Centre was “emasculating the tribunals by not appointing members.”

New Delhi: The Union government on September 7 cleared the appointments of six members to the Armed Forces Tribunal (AFT), Bar and Bench reported.

The appointments have been made after a three-judge bench of the Supreme Court slammed government inaction on the matter on September 6.

Also read: SC Raps Centre for Continued Failure to Make Appointments to Tribunals

The bench of Chief Justice of India N.V. Ramana and Justices D.Y. Chandrachud and L. Nageswara Rao had come down hard on the government, noting that it was “emasculating the tribunals by not appointing members.”

During the hearing, Justice Chandrachud had categorically mentioned the AFT while discussing how the lag in appointments, despite recommendations being made by the top court, was affecting the functioning of several tribunals across the country.

The new appointments are:

Justice Bala Krishna Narayana
Justice Shashi Kant Gupta
Justice Rajiv Narain Raina
Justice K. Harilal
Justice Dharam Chand Chaudhary
Justice Anjana Mishra

In accordance with the Tribunal Reforms Act, 2021, the tenures of the six new appointees have been fixed at four years or until they reach a maximum age of 67 years.

On September 6, the Supreme Court bench had been hearing a plea by Congress leader Jairam Ramesh which challenged the inclusion of several sections in the Act which had earlier been struck down by the apex court in the case of Madras Bar Association versus the Union of India.

The bench had come down heavily on the Act for including these provisions and Section 5 of the Act, which fixes the tenure of tribunal members at four years, was one of the provisions that had earlier been struck down. The court had remarked that it could not keep on passing judgements if Parliament continues to overturn them.

Despite having 17 benches in 11 locations across the country, the AFT is currently operating with only four benches in three cities; two in Delhi and one each in Chandigarh and Lucknow, as reported by the ThePrint.

The Armed Forces Act, 1958, which governs the functioning of the AFT, lays down that an AFT bench must consist of one judicial member and administrative or expert member. Such a bench can only function when this quorum is complete.

Pendency of cases with the AFT is high with 19,000 cases awaiting adjudication.

SC Examines Bail Possibility for Long-Pending Criminal Cases, Issues Notice to Allahabad HC

‘We want to lay down some norms only on the ground that appeals have not been heard for years. People can’t be in custody for this long.’

New Delhi: A bench of the Supreme Court is examining the possibility of granting bail to people jailed in long-pending criminal appeals, Bar and Bench has reported.

“We want to lay down some norms only on the ground that appeals have not been heard for years. People can’t be in custody for this long,” a bench of Justices Sanjay Kishan Kaul and Hrishikesh Roy said.

The apex court has issued notice to the Allahabad high court on the matter and noted in its order that it expects the Uttar Pradesh government to take proactive steps even before the next hearing date in situations where people are in jail for prolonged periods without bail.

Uttar Pradesh additional advocate general Garima Prashad’s submission to the bench, that those who remain in jail for long without bail are usually those who do not have financial means also reflected the inequality of the incarceration process.

Also read: A List of Activists, Scholars and Scribes Whose Personal Liberty Remains at Judiciary’s Mercy

The Uttar Pradesh government has, in a note, delineated broad criteria while considering bail pleas: total period of imprisonment and for how long their criminal appeal has been pending. Within the scope of these two, the Uttar Pradesh government has also suggested that the seriousness of the crime, the person’s past conduct and criminal history and deliberate delays in appeal pursuing be taken into account. The convict’s personal appearance before the high court, which should be the court she first approaches, was also mentioned as an additional condition.

Several commentators have upheld, at various times, the case for bails as a norm and the necessity to view incarceration only as an exception. NALSAR V-C Faizan Mustafa had written on The Wire, how punishing bail orders affected the legal system, citing examples in cases where judges had sought to offer comments on the case and its merits instead of prioritising the argument for or against bail.

Retired Supreme Court judge Justice Madan B. Lokur had written as part of a tw0-part analysis on The Wire, that lack of accountability over cases which drag on without offering bail is often a leading factor for the perpetuation of such a tradition.

Justice Lokur wrote:

“Six men were held not guilty by the Rajasthan high court in the 1996 Samletti blast case, after they spent 23 years in jail without bail or parole. Their lawyer was quoted as saying: “They were named in multiple cases without any basis. They have been acquitted in all the cases — but after 23 years.” Again, no one is accountable.”

The Calcutta high court earlier this year ordered the release of a Nepali citizen who has been incarcerated for over 40 years in a correctional home as an undertrial prisoner in connection with a murder case.

SC Asks States for Updates on Vacancies, Pendency in Information Commissions

The neglect of information commissions has been seen, in the past, as a means to blunt the effect of the RTI legislation.

New Delhi: The Supreme Court on Wednesday, August 18 directed states to file status reports on the numbers of vacancies and pending pleas in State Information Commissions (SICs) under the Right to Information (RTI) Act.

A bench of Justices S. Abdul Nazeer and Krishna Murari on July 7 had sought a report from the Centre and states on their compliance with its 2019 verdict asking them to ensure time-bound appointments to posts of Information Commissioners (ICs) at the Central Information Commission (CIC) and state panels under the transparency law.

In an important verdict on the transparency law on February 15, 2019, the apex court had come out with a slew of directions regarding these appointments. It had ordered that the selection process to fill vacancies at the CIC and SICs should begin two months before they arise and that the search committees should select people of eminence from various fields and not be limited to bureaucrats.

Earlier this year, the court had noted that the Centre’s last status report on compliance was filed over a year ago and had asked Additional Solicitor General (ASG) Madhavi Divan to file a fresh one on the status of vacancies, the steps taken to fill them and observance of other directions.

In its order, the bench had directed the respondents – Union of India and states – to file ‘status and compliance reports’ within four weeks of the order being passed. The bench also granted permission to the petitioner – Anjali Bhardwaj, RTI activist and member of the Satark Nagrik Sangathan – to file an additional affidavit in the meantime.

Also Read: ‘Mounting Pendency,’ Petitioners Ask SC to Urgently List Information Commissioner Vacancies Matter

The top court was, at the time, hearing Bhardwaj’s plea seeking implementation of the 2019 verdict on appointments to the CIC and SICs. Bhardwaj had also sought direction to government authorities on the implementation of the top court’s order, asking them to appoint ICs.

Senior advocate Prashant Bhushan, appearing for the petitioner, had said an application had been filed for filling up of vacancies in CIC and SICs.

“Directions were given in 2020 that these posts need to be filled up well in time. Another important direction was issued. The court had deprecated the practice of selecting only bureaucrats or having a selection committee made up only of bureaucrats,” Bhushan had said.

Further, he had pointed out that vacancies continued to exist in SICs in states like Maharashtra, Odisha, Karnataka and West Bengal and that there was a need to implement the Supreme Court’s directions in their entirety.

Bhushan had also alleged that around 75,000 cases under the RTI legislation in the Maharashtra SIC and 36,000 in the CIC were pending adjudication and stated that the efforts were being made to render the RTI legislation ineffective.

With regards to the selection of ICs, the Supreme Court in 2019 had stated that the bureaucratic bias in the selection process was “writ large” and that the parliament had intended for persons of eminence in public life to be taken into the information commissions. It dubbed the overwhelming tendency of appointees to be coming from public service to be a “strange phenomenon”.

To bring in transparency in the selection process, the apex court suggested that states adopt the Centre’s process in which it uploads the names of the search committee, the names of the candidates who have been shortlisted as well as the criteria followed for selection on the CIC’s website.

The top court had then directed the Centre and eight states – West Bengal, Orissa, Maharashtra, Gujarat, Nagaland, Andhra Pradesh, Kerala and Karnataka – to fill up the vacancies without any delay within a period of six months.

How Much Time Do You Need To Complete Hathras Case Probe: Allahabad HC Asks CBI

The court had also expressed concern on allowing Hathras District Magistrate Praveen Kumar Laxkar to continue in office during the pendency of the investigation.

Lucknow: The Lucknow bench of the Allahabad High Court has asked the CBI to let it know on November 25, 2020, how much time it would take to complete the probe into the Hathras gangrape and murder case.

It has also asked the Central Reserve Police Force (CRPF) to file an affidavit stating that it has provided security to the victim”s family members.

A bench of Justice Pankaj Mithal and Justice Rajan Roy is hearing a PIL which the court had earlier filed suo motu in the Hathras case. It heard the matter on November 2, 2020, and its order was made available on the court website on Thursday.

A 19-year-old Dalit woman was allegedly raped by four upper-caste men in Hathras on September 14, 2020. She died on September 29, 2020, at Delhi’s Safdarjung Hospital during treatment.

During the hearing on November 2, 2020, the bench asked the Central Bureau of Investigation (CBI) to apprise it on November 25, 2020, the next date of hearing in the case, how long it would take to complete its probe in the case.

It also asked the agency’s lawyer, Anurag Thakur, to file a status report concerning the investigation so far.

The bench directed the CRPF to file an affidavit stating that it has provided security to the victim’s family members.

Also read: In Hathras ‘Conspiracy’ Plotline, a Glimpse of How Hindutva ‘Fringe’ is Really Its Mainstream

During the hearing, the court had also expressed concern on allowing Hathras District Magistrate Praveen Kumar Laxkar to continue in office during the pendency of the investigation into the case.

Laxkar came under fire after the victim was cremated in the dead of the night near her home on September 30, 2020, with her family members alleging that they were not allowed to bring the body home one last time. Senior police and administration officials were also present at the cremation.

The bench asked state government lawyer S.V. Raju if retaining Laxar was fair and reasonable.

The bench further asked Raju, “Would it not be appropriate to shift him elsewhere during the pendency of these proceedings without there being any stigma attached to such an action only to ensure fairness and transparency in the matter?”

At this, Raju assured the bench that he would convey the court”s concern to the state government and get back to it on November 25, 2020.

Pendency of Rape Cases Is on the Rise in India

The pendency of such cases has increased by more than 46% across the country since March 2018.

New Delhi: Even as Indian law provides for rape cases to be completed within a year through fast-track courts, there has been a sharp increase in pendency of such cases. According to the data taken from different high courts, and subsequently released by the Union law ministry, the pendency of such cases has increased by more than 46% across the country since March 2018.

Delhi has topped the list and has registered a whopping 353% increase in pending rape cases. However, in absolute terms, the number of pending cases in Uttar Pradesh is the highest – from 36,000 to 67,000 between March 2018 and December 2019. Maharashtra, Bihar, West Bengal, Madhya Pradesh and Rajasthan have also registered very high number of pending rape cases.

Also read: How Men Can Help Stop Violence Against Women

UP and MP showed an 80% increase in such cases. A cumulative national picture is also quite abysmal. Pending rape cases and those related to Protection of Children Against Sexual Offences (POCSO) Act between the same period increased by over 77,000 – from 1,66,882 to 2,44,001.