Wednesday, December 12, 2007

Judicial Backlog : Focus on the Madras High Court, and a stimulating suggestion

The huge backlog of cases in the Indian judiciary has often cropped up in posts and discussions on this blog. Recently, this post incidentally mentioned Chief Justice Balakrishnan's Law Day speech where he provided details of the latest statistics relating to cases pending before various levels of the judicial setup. Sriram Panchu, a leading light of the Madras High Court bar, has an op-ed in today's Hindu which begins by focusing on the CJI's speech, and the numbers cited there. He then focuses more closely on the statistics to make the point that the High Court of Madras "does seem to have received stepmotherly treatment." He goes on to assert that:

Whether one takes pendency or fresh institution of cases, absolute numbers or percentages, the Madras High Court is disadvantaged. The Court with the second largest caseload and the biggest influx of fresh cases has the least number of judges. Every Court in this country needs more judges, and the purpose of this piece is not that other courts do not deserve to have increases in judge strength. Instead, it is to underscore the position in a major High Court, which seems to have been overlooked for no appreciable reason.

The rest of the piece makes good on this theme by citing statistics, and discussing the implications of the staggering pendency for the functioning of the High Court of Madras. Towards the end, Panchu raises a more general point of policy:

This situation must cause us to rethink the present system under which courts are dependent on the executive for funds for their infrastructure and functioning. Governments have various priorities, and can always plead shortage of funds (which seem ready at hand for populist causes). Politicians and bureaucrats are often at the receiving end of court orders and censures, and can hardly be expected to be generous when sanctioning budgets for the judiciary. Isn’t it rather strange that ministerial berths can be created at the drop of a hat, but judicial posts are being sanctioned, and filled, slowly? We need a different, more independent method of evaluation of judicial needs and speedier responses. Perhaps a National Judicial Commission, whose birth is long awaited, can perform that role.

Panchu’s argument appears compelling, and though judges have often made calls for greater allocation of funds in the annual Union budget, the linking up of this issue with the National Judicial Commission appears to be a novel suggestion, and may well be worth considering seriously.

2 comments:

Dilip said...

Dear Arun,

In that news item questioning the number of working days, K.K.Venugopal’s claim that the Indian Supreme Court enjoys more vacation than the U.S. Supreme Court is false. The U.S. Supreme Court also enjoys a five day working week and a much longer summer vacation as well as a short one for Christmas. The article says that the Court enjoys a two and a half month holiday whereas the official calender shows a vacation from May 21 - July 8 (a link to the official 2007 calender is here). If that counts as 'nearly two and a half months', it is either an inadvertent error, a deliberate distortion or the writer is simply mathematically challenged. The general tenor of the piece suggests an element of judicial lethargy though no actual evidence beyond some questionable numbers about the actual working days is provided of it.

Do we need more judges in the high courts or do we need an alternative solution? A large number of judges will make the appellate courts more unwieldy and difficult to maintain coherence or discipline. If one compares these case numbers to the number of appeals filed in the US Courts, the vast difference cannot be accounted for only by population differences. I understand that the systems and needs are quite different but it should prompt some reflection on whether simply increasing numbers is the answer. The long summer vacation is a legacy of the pre-independence era. Is the growing litigation primarily due to a growing population, increasing legal awareness and better paying capacity of the public or does it also point to a fundamental change in the meaning and objectives of appellate review? Are any such changes justified retrospectively? Is a more selective approach to judicial review a better solution? Does a larger body of qualified supporting staff for every judge help eliminate cases faster? Are additional tiers of Courts a better answer than enlarging the sizes of current Courts? Are truncated hearing schedules with time limits a possible solution? It would be interesting to know if any committee or government body has explored alternative avenues and come up with answers to them.

Arun Thiruvengadam said...

Dear Dilip,

Thanks for pointing out the mistakes in the newsitem. The calendar does seem to indicate that the newsitem gets its figures wrong. But, from my count on the official calendar, the Supreme Court still only works for 184 days - it has long holidays for summer and winter, and its holidays for Deepawali and Dussehra seem longer than those enjoyed by other govt. institutions (except schools). Comparisons with the U.S. Supreme Court should be taken with more than a pinch of salt - there are huge differences between the nature of the two institutions; moreover, the US court is now handling far fewer cases than it has done in several decades (which is seen as a problem by progressives in the US).

The fact remains that the Supreme Court probably still has more holidays than most public institutions in India. The counterargument of course is that unlike other public officials, judges actually do a considerable amount of work (writing their judgments) after their official hours of work (i.e. court hours). The long summer holiday, however, isn't the only colonial practice that is being unnecessarily continued. At a time when most apex courts around the world have time limits on oral arguments, our courts still continue to think that effective advocacy consists of making long arguments - so, the feats that are passed on to young lawyers are those of legendary lawyers having argued for days on end. The question to ask now is why such traditions are continued with, and why there aren't strict time limits on oral submissions, with a concomitant reliance on written submissions. Many senior lawyers have often pointed out the problems with these and other similarly outdated practices.

As to alternative solutions, there have been many proposed, including some endorsing specific suggestions that you have mentioned. The problem of delay in our legal system has occupied legal scholars, judges and lawyers from the early part of the 20th century. I will try and post about some of the more relevant and persuasive ones in the near future. For one interesting semi-official study that focused on changes in three specific aspects (court administration, case management, and consensual dispute resolution), click here.

The sad feature of contemporary debates on delay is that the judiciary still sticks to some conventional paths, such as insisting on having more judges being appointed. As you note, there are problems with relying on this model so heavily.