The replacement of indigenous systems of justice by the colonial British system of jurisprudence radically reshaped the structure of property and other rights in the country. The implications of this implant in the legal landscape continue to be explored in a large literature by historians and economists.
Painstaking surveys of the topography of the land were a necessary underpinning of the new legal system. The initial cadastral surveys performed more than one hundred years ago remain the basis for land rights to this very day. The new legal structure spawned a class of Indian lawyers who functioned as its gatekeepers for a bewildered population, and earned fabulous wealth by so doing. Ironically, some members of this class, Motilal Nehru prominent among them, ploughed their wealth into the movement for the eviction of the colonial government, the very means of their enrichment.
The pre-existing legal systems varied widely across the country. Marc Galanter, a renowned scholar of legal systems in South Asia, has documented the changes wrought by the new system in great detail. In some parts of the country, the new system was perceived as less capricious and more squarely based on factual evidence, but in many others, it was seriously at odds with received notions of justice and community rights.
Whatever the regional variations in the indigenous systems earlier in place, one feature that they all had in common was the short duration of time between initiation of a case, and the final verdict. Legal examination was less complicated procedurally, and a final decision was soon reached. The demands of the new system on the other hand introduced delay between case and verdict that by itself was seen as unjust. What the new system did do uniformly across the country was to lengthen pendency.
Given this history, it might be thought that independent India would move to reduce legal pendency, but sadly that has not happened. The constraints on the supply of justice in India have congested the judicial system to the point where what is nominally a public good has become sadly excludable, and rivalrous. Every new case jostles along with existing cases for the limited attention of the courts. The stock of pending cases in the country today is estimated at 30 million. The situation has reached crisis proportions.
The Thirteenth Finance Commission, in a departure from tradition, makes provision for an absolute grant to states to improve the supply of justice, a concurrent subject in the Indian constitution. The total provision of Rs 5,000 crore for the period 2010-15 is broken down into nine monitorable components, so as to drive the system towards correcting the specific deficiencies identified in the action plan of the Central Ministry of Justice. It is useful to run down this list for an understanding of the multiple disabilities that plague the judicial system.
The single biggest problem is that the existing physical infrastructure is not fully used. Accordingly, half the total provision is earmarked for the operation of morning/evening shifts in sanctioned courts. Serving officers can man these extra shifts with additional compensation, and the pool of retired officers can be tapped if required. The distribution across states of this segment of the grant is calibrated to the number of sanctioned courts in each state.
The Alternate Dispute Resolution (ADR) mechanism, a fast track option for settlement of civil disputes, is presently available only at high court level in state capitals. An infrastructure grant for the creation of one ADR centre in every judicial district of the country is provided, allotted to states in proportion to the number of judicial districts within each. The grant will also cover the cost of training mediators and conciliators needed to staff the new centres. There is an independent grant for Lok Adalats for mass resolution of cases, at 10 per year at high court level, and five per year for lower courts. Legal aid for under-trials lacking the wherewithal to pay for their defence has a separate grant provision. These three grants for enhancing the pace of case flow together receive Rs 1,050 crore.
Then there is an unavailability of trained judges to fill vacancies in the system, currently estimated at 18 per cent. The proposal to establish 5000 new village level courts under the Grama Nyayalaya Act notified in October 2009 will add further vacancies to be filled. The Finance Commission, therefore, provides each of the 20 high courts in the country with two grants for the training of judges. One is meant for additional infrastructure in presently operating judicial academies, or for the creation of new judicial academies where none presently exist. The second is for bolstering the training capability of these institutions. Another closely related grant is for creation of the post of Court Manager, which will free the time of trained judges for performance of their judicial functions, without the distraction of administrative claims on their time. There is a separate grant provision for the training of public prosecutors, since the government aggregating across all levels is the single largest litigant in the country. These four programmes together receive Rs 1,000 crore. A small remaining grant of Rs 450 crore goes towards restoration of heritage court buildings.
The provision for improved justice delivery is available for the current year, 2010-11, without any conditionalities. However, a state will qualify for receipt of the grant for 2011-12 only if a State Litigation Policy, setting the norms for government engagement with the legal system, is in place before the close of the current fiscal year. If that does not happen, the grant can begin to flow to a state only prospectively from the time at which such a policy is framed. The budget head structure does not permit quantification of the total expenditure on the legal entanglements of the government, but if a portion of that had been spent instead on enhancing the supply side of the judicial system, the pendency situation might not have been what it is today.
The author is honorary visiting professor, Indian Statistical Institute, Delhi
