Small can be beautiful

Whenever there is any judicial conference, the topic that invariably comes up for discussion is pendency of cases and delayed justice. And every single time the same panacea is offered — fill up vacanicies and further increase the number of judges. Like his predecessors, Chief Justice of India T.S. Thakur too apportioned the blame on the executive for not making adequate appointments of judges to tackle the backlog of cases.

On April 24, while addressing the conference of chief ministers and chief justices of high courts, Chief Justice Thakur almost broke down in the presence of Prime Minister Narendra Modi as he lamented that the judiciary was being condemned unnecessarily for the mounting judicial crisis. The malaise is deeper and referring to judge to population ratio (India’s ratio is 13 judges per million people) being low is simplistic.

India is notorious for protracted litigation and trials. Civil cases continue for several generations. India, in fact, holds the record for the longest contested lawsuit according to the Guinness Book of World Records.

In Pune, on April 28, 1966, Balasaheb Patloji Thorat received a favourable judgment in a suit filed by his ancestor, Maloji Thorat, 761 years earlier, in 1205 CE. The issue was the right of presiding over public functions and precedences at religious festivals.

A case filed in Kolkata in 1833 is yet to be decided. In the late 18th century, Governor-General Robert Clive ruled that thousands of acres of land, historic buildings and temples spread across Kolkata remain in the custody of Raja Naba Krishna Deb, a royal of the Sovabazar court. The case still drags as over 2,000 scions of the royal family continue to fight.

The Rankin Committee was set up in 1924 to examine the problem of delay as civil cases were not being disposed of in six months. The committee attributed it to adjournments and delays in serving summons and that is still the order of the day.

The Law Commission, in its 120th report (1987) on Manpower Planning in Judiciary, highlighted this problem and recommended increasing the number of judges.

If we talk about the judge-population ratio, we also must take into account the number of litigations in India.

Marc Galanter, professor of law emeritus at the University of Wisconsin Law School, has exploded the popular myth that Indians are highly prone to litigation: “Since British times, it has been widely believed that the Indian population is extremely litigious. This piece of received wisdom is however far from the mark... Reliable data are scarce and the state of record-keeping makes collecting them a daunting task, but there are sufficient bits to suggest that India is among the lowest in the world per capita use of courts... Prof. Christian Wollschlager, the trailblazer of comparative judicial statistics, presented a comparison of the per capita filing of civil cases in some 35 jurisdictions for the 10-year period, 1987-96. Rates of filing in courts of first instance per 1,000 persons ranged from 123 in Germany and 111 in Sweden at the high end to 2.6 in Nepal and 1.7 in Ethiopia at the bottom. Since no national figures are available for India, Prof. Wollschlager included in his comparison figures on Maharashtra, which ranked 32 of the 35 jurisdictions with an annual per capita rate of 3.5 filings per 1,000 persons. There is no reason to believe that Maharashtra has less litigation than India as a whole, since no data point to a general correlation of court use with economic development.”

On the issue of judge-population ratio it will be pertinent to recall what US President Nixon said on March 11, 1971, on the administration of the criminal justice system: “...if we limit ourselves for more judges, more police, more lawyers operating in the same system, we will produce more backlog, more delays, more litigation, more jails and more criminals... More of the same is not the answer, what is needed now is genuine reform — the kind of change that requires imagination and daring and demands a focus on ultimate goals.”

Justice V.R. Krishna Iyer echoed a similar sentiment: “The truth is: more courts, more arrears, more lazy judges, more examples of Parkinson’s Law and Peter Principle. The real cause of the escalating arrears is the absence of accountability and transparency For more disposals and inexpensive justice, the purposeful therapy is not the arithmetical illusion of judicial numbers but intelligent selection of robed brethren, of result-oriented technology, and summary procedure.”

A stereotype has been successfully created that judges are overworked and that the judicial system is crumbling under the load of cases. One can compare the disposal rate of a competent court with that of a not-so-competent court and things will be crystal clear.

Judicial incompetence is reflected in the new trend of keeping judgments reserved for a long time. The Supreme Court itself expressed annoyance over this in Anil Rai vs State of Bihar.

Earlier, judges generally dictated judgments running into hundreds of pages in the open court immediately after the hearing was over or at least pronounced the operational part. Today there are judges who reserve judgments for months and even years, and then conveniently retire. Such cases are then reheard, causing avoidable harassment to litigants. There have been a few high court judges who hardly wrote any judgment except “I agree”.

Adjournment is another bane of the Indian legal system. Lawyers seek repeated adjournments, and judges grant the adjournments. This is because several judges do not come to the court prepared.

One of the parties is invariably interested in prolonging the trial and lawyers adopt dilatory and other reprehensible tactics. It is well-nigh impossible to get adjournment in developed countries.

More important than disposal is the quality of disposal. There may be total disposal with no arrears and yet there may not be any justice. If the judgment is impeccable, it leaves little scope for appeal/revision/review. The court should also tear into the designs of those trying to protract matters by, at times, challenging every order of every court till the appellate channel is exhausted.

Judges should take inspiration from Thomas More (1478-1535), who, as chancellor, was notable for the speed at which he dispatched his cases. It is reflected in a popular rhyme:

When More some time had Chancellor been, No more suits did remain; The like will never more be seen, Till More be there again.

The writer is a senior TV journalist and author