Judicial reforms remain a non-starter

The need for judicial reform in general and reducing the backlog in courts in particular has been felt for long and studied from (1949) even before the Indian republic came into existence. Similarly, the need for police reform, a related issue, has been studied by a plethora of bodies (at least five) but remedial action and positive results have been negligible. This collection of essays seeks to marshal as much of hard information as is available and applies a degree of academic rigour to it to come up with both a description of the malady and possible cures.

The emphasis throughout is on what happens at the district and lower courts, which are really the trial courts of the country. This is appropriate as improvement in backlog has till now been confined to the Supreme Court. Other than this, improvements in the Indian judicial system in recent years can be counted on one's fingers. A defendant now has to file his reply to a plaint within three months, witnesses' deposition can be filed as an affidavit and a beginning has been made in video conferencing to record evidence. And oh yes, some high court judges have been given laptops!

In a key chapter, Arnab Kumar Hazra and others emphasise that there is no single remedy for what ails the courts and the need is to "develop a more focused approach tailored to the needs of individual states and union territories". There is enormous need to "move away from broad macro analysis of congestion, proceed to the micro level and actually examine the type of cases that are being over-litigated and where the accumulation of cases have taken place". To clear the backlog it is certainly necessary to increase the number of judges (the judge-population ratio in India is low) but even more important is to fill vacancies. However, that is not all. The judges and the courts have to become more productive by reforming procedures. The backlog will go down when litigation rates go down (people don't feel the need to file cases or persist with them) and special attention is paid to cases pending for long.

In another useful contribution, Debashis Chakraborty and others come up with the insight that the problem of case backlog is not insurmountable. At the current rate of disposal, if no new cases were admitted, the entire criminal case backlog could disappear in 18 months. Or, if you double the number of judges and admit new cases, the entire backlog can go in 18 months at the 1998 rate of disposal. So the remedy is to fill up the vacancies, appoint some more judges to fresh posts and, perhaps the most important, improve judicial productivity.

Barry Walsh, an Australian expert, does a highly instructive comparison of Australian court practices and those at the Delhi high court. The fact that Indians have little idea of when they will get a verdict, "the absence of outcome date certainty" is the "quintessential difference" between the Indian courts and those following "best practices". Uncertainty about not just when you will get a verdict but also what it is likely to be makes for low settlement and plea rates (pleading guilty), putting a premium on delay. If in criminal cases the prosecution is well prepared and in civil cases the litigant knows that an eventual adverse verdict will be severe, then there is less likelihood of cases being contested, making for higher disposal rates.

A key culprit is the ease with which adjournments are given in India. Courts don't even count the number of adjournments allowed and individual judges say it can be anything between 20 and 40 in the life of a trial. The corresponding figure for attendance in Australia ranges between 0.3 and 6.3. On a single day a Delhi high court judge can grant adjournments in 80 out of the 100 cases listed. Another key reason for delay in India is the absence of continuous trials, once a trial begins. In most of the Commonwealth, a judge goes through an entire case (not hear several running cases simultaneously) in successive continuous hearings.

Perhaps the most telling comment on the entire system is provided by Videh Upadhyay in a footnote: "...when, in reply to a parliamentary question, the high court at Delhi was asked to provide information on how much time it takes to deliver a judgment after the argument has been heard, the high court chose not to respond on the ground(s) that it would compromise judicial independence." Further comment is superfluous.

Judicial Reforms in India
Issues and Aspects

Arnab Kumar Hazra and Bibek Debroy
Published by Academic Foundation in association with Rajiv Gandhi
Institute for Contemporary Studies
Rs 795; 330 pages