Justice and the two ideas of India

NO one can disagree with the Chief Justice of India that India has too few judges. China today has over two lakh judges for a population only slightly more than that of India. Even after an explosive growth in judge strength in India in the last decade (judge strength nearly doubled from about 11,000 to about 20,000), India still has only some 10 per cent of the number of judges that China has and only some 66 per cent of the judge strength of the United States, which has some 30,000 judges.

The Chief Justice is again absolutely right when he says that many judges are hugely overworked (this is, of course, no different from the situation in which many other public servants providing equally important services in our country, such as police personnel, teachers, doctors, nurses, etc., find themselves). However, the question of judge strength and judicial reform cannot be discussed without addressing more fundamental questions: Why do we need more judges? What is the role of the judiciary? What do we expect of our judges?

Feudal idea of India

The role of any judiciary is derived from the vision of the nation of which it is a part. India is caught between two conflicting visions of the nation—a progressive constitutional vision and a conservative social vision—each with its own view of the role of the judiciary and the number and types of judges needed. The conservative social vision of India is of a strong nation that derives its strength from the ruling classes. India is envisioned as a nation united by a common set of beliefs and values emanating from and authorised by the ruling classes and imposed on the masses. In this view, a strong India equals a strong ruling class (the “iron frame” or “authoritarian” vision). This vision is, in essence, an attempt to update and revive the feudal idea of India.

The opposing view, the progressive constitutional vision, is of a strong nation that derives its strength from the masses. This vision envisages breaking down the concentration of power and devolving and scattering power amongst the poorest and the weakest. In this vision, the unity of the people and the strength of the nation rest on a shared belief in equality, individual freedom and democracy. In this democratic vision of India, a strong India equals a strong citizenry (the “individual swaraj” or “democratic” vision).

In the iron frame vision of India, the role of the justice system would be in line with a classical definition of the judicial responsibilities of a raja: to punish “evil” people (i.e., people who question the ruling classes); honour “good” people (i.e., people who support the ruling classes); grow the revenue; and defend the nation—“ dushta danda ; sajana pooja ; kosha vridhi ; and rajya raksha ”. The judicial system would secure and uphold the power, property and privileges of the state and of the ruling classes. There is little scope in the iron frame vision of India for a rights-based adversarial justice system that is meant to empower the average citizen by giving her the tools to interrogate the powerful.

The iron frame vision would see the judicial system as primarily an instrument for the state and the ruling classes to use against errant citizens and institutions that question or challenge the orthodoxy on which the nation is built. It is not meant to be used by citizens to question the ruling classes or the state. The iron frame vision would therefore look at the 20-fold increase in the number of cases in the judicial system over the last half century (from about 25 lakh in the 1970s to about five crore currently) with consternation. It would see “docket explosion” as a great threat and set up strategies to divert cases from the judiciary to alternative dispute resolution forums and tribunals.

The iron frame vision would see speedy disposal of cases as a goal in itself, unmindful of the fact that especially in criminal cases the vast majority of the accused are poor people who have little access to legal counsel or the means to protect themselves against a widely corrupt system of policing. It is interesting to note in this context that as a result of the recent initiatives in judicial reform, some 30 per cent of the criminal cases in the country are now completed within 12 months and some 60 per cent (including this 30 per cent) within three years. The speed of disposal is the highest in the lowest courts, which is where most litigants are the poor. It is also interesting that rates of conviction are the highest in jurisdictions with lower social indicators and more authoritarian social dispensations.

On the other hand, a rights-based adversarial justice system that is meant to empower the average citizen is central to the individual swaraj vision. Here the role of the justice system is, to borrow a thought from Mahatma Gandhi, to be a legitimate, peaceful, constitutional channel of non-violent resistance against power. The judicial system would secure the individual rights of every citizen and their democratic power to rule this nation. It would protect the powerless against the powerful rather than protect the powerful against the powerless. Such a role would challenge orthodoxy and generate conflict (as in the recent cases involving the freedom of women to enter religious places).

As declared by the Supreme Court of India in 1981 ( S.P. Gupta vs Union of India ), the Constitution is a charter for social revolution and is clearly on the side of the democratic vision of India. Much of the legislation enacted by the legislature is also in support of the democratic vision of India. The philosophy of the Constitution—derived from the national movement for freedom—therefore, clearly embraces the democratic vision.

‘Docket exclusion’

The individual swaraj vision would see the justice system as a tool for the masses to hold the ruling classes and the state accountable. It would see the problem not as “docket explosion” but as “docket exclusion”. It would point out that the U.S., for example, has an annual filing of some 330 new cases per thousand population, whereas Bihar has an annual filing of about four new cases per thousand population. The annual filing for India as a whole is 17 cases per thousand population. Within India, Kerala has about 40 new cases per thousand population and Delhi has about 52 new cases per thousand population. Is this difference because the rights of the people of Bihar, for example, are less violated in India than the rights of the people of Kerala or the U.S.? Or is it because there is greater social approval and support for common people taking recourse to courts to protect their rights? Or is it because in a more democratic society, the personnel of the courts, and therefore the institution itself, are more receptive to the grievances of the poor?

The effective implementation of constitutional provisions and laws by the judicial system would be a social revolution in and of itself, and the battle over competing visions of India would be decisively decided in favour of the democratic vision. This is a strong reason why the conservative elements of our society within state institutions and outside do not allow the judicial system to work effectively.

The organisational framework and performance metrics of the judicial system (and the number and types of judges we need) would be different for the two visions of the nation. For example, the quality of justice in the orthodox vision would be measured by the extent to which the social order is enforced against common people, whereas the quality of justice in the second democratic vision would be determined by the extent to which rights are effectively secured.

The number of judges in the democratic vision would be much higher than in the authoritative vision because of the role of the judiciary in bringing about social transformation. Regardless of the number of cases, every two lakh citizens should have access to a court/judge (compared with every 20 lakh citizens having an MP today, a number that should also be significantly increased). This would increase the number of judges in India threefold to 60,000. People should be assisted through legal literacy and legal aid programmes to file cases to secure their rights. Docket exclusion would be the enemy, not docket explosion. Increase of bona fide litigation would be a cause of celebration, not of dismay. The workload of judges would be set such that they could take a proactive role to secure rights. Currently, the judicial system as a whole involves 20,000 judges processing some five crore cases each year, that is an average of 2,500 cases a judge a year. At about 10 hours of work daily of some 20,000 judges (including time spent off the bench researching and writing judgments and doing administrative work) working for 240 working days in the year (including so-called vacation time), some five crore “judicial hours” are available. Given that the system currently processes about five crore cases annually, this means that, for planning purposes, the total time available to a judge to process each case in a year is notionally about one hour and a lot of cases do not get their turn.

In considering judicial reform and the role of the judiciary, we also need to take into account the widely varying and mutually conflicting visions of justice and demands for judicial reform from different economic and social segments of the population. For example, the rich define the problem of justice in terms of the extent to which the justice system effectively and promptly protects their private property and privilege—and either supports or frustrates state power to the extent it challenges property or privilege. The middle class, on the other hand, defines the problem of justice in terms of the effectiveness of the justice system to protect it from the “excesses” of both the ruling and the working classes and address its principal concerns as employees, customers, homeowners, borrowers, small business operators, peasant farmers, small-scale property owners, victims of crime, and so on. It wants the judicial system to challenge the property and the privilege of the ruling classes and the rights of the masses, where needed. It wants efficient, fast, affordable justice that protects its interests.

Reasonable access to justice

The crisis of justice that is the subject matter of discussion in the media today is in fact the crisis of “justice for the middle class”. The main difference between India and the OECD (Organisation for Economic Cooperation and Development) countries is that whereas the middle class in these countries has reasonable access to justice, in India it does not. A vocal and powerful middle class has emerged in India since 1991. It is demanding reasonable access to justice. Much of the judicial reform effort will help meet this demand. This is a feasible objective, and the middle class in India will have reasonable access to justice in the next 20 to 25 years.

The question of justice for the poor is, however, an altogether different challenge. No country in the world has been able to secure justice for the poor. Most of the jails of the richest countries are filled with the poorest. The “masses” are more often victims of the criminal justice system than of crime. In India as well, jails are almost exclusively filled with the poor. The civil justice system is hardly accessible to them. They are often victimised by lawyers, touts and court staff. They are docket excluded, a new type of untouchability. The language and the logic—and the colonial and feudal culture—of the judicial system are alien to them. It rarely takes cognisance of their needs and interests. Their main concern, therefore, is to escape the attention of the justice system, criminal and civil. A landless Dalit person in the interior of Madhya Pradesh once gave me an insightful definition of a court from the perspective of the masses: “A court is a place where you are forcibly taken by the police to be punished; no one goes to a court.” In contrast, many lawyers and judges colloquially define a court as “a temple of justice where rights are protected”.

These sharply divergent visions mean that justice for one section is often injustice for another. Protecting the livelihood of traditional taxi and auto drivers from predatory pricing by corporate app-based taxi providers by imaginatively using the available tools of law to delay their incursion would be seen by the rich and by sections of the middle class as a failure of the judicial system, and possibly as also resulting in a downgrading of the “ease of doing business” measure. However, the masses would see such a judicial intervention as strong evidence of a good justice system. Although the conflict over competing visions of the nation and conflicting demands from social and economic segments have confined judicial reform of judicial administration mainly to “neutral” areas such as process reform, procedural law, technology, planning and court and case management, judge strength, and the workload of judges, there has been considerable improvement in these areas, and the judicial system has improved its performance.

No area has received as much attention of the Law Commission of the Government of India as judicial reform, which has constituted, directly and indirectly, the single-largest area of its work over the past 60 years (covering some 81 out of 262 of its reports and accounting for over 31 per cent of its work). These include, notably, the 14th report of the Law Commission headed by M.C. Setalvad, on “Reform of Judicial Administration” (1958), and the 77th Report, on “Delay and Arrears in Trial Courts” (1978), by Justice H.R. Khanna. In addition, there have been several committees and commissions at the State/High Court level to look into delay and arrears.

National Court Management Systems

Chief Justice S.H. Kapadia established the National Court Management Systems (NCMS) Committee in 2012 (with which this writer is associated), creating for the first time a permanent institutional space within the national judiciary to identify policy issues in judicial administration and resolve them using the good offices of the Supreme Court. The NCMS mechanism has been replicated by now in all High Courts as State Court Management Systems (SCMS) Committees. The NCMS and the SCMS together have launched several initiatives. In particular, the “five plus zero” initiative has resulted in nationwide monitoring of cases more than five years old in any court with a view to dispose of those cases and achieve a “five plus zero” status. Six States have become statistically five plus zero since this initiative was launched. The central focus of the NCMS is on advocating measurable performance standards covering quality, responsiveness and timeliness (QRT) as well as efficiency and a sound institutional framework of standards, including on human resource development, court and case management and planning, and infrastructure. Baseline papers have been prepared in each of these areas and posted on the Supreme Court website.

It is unfortunate that there exists a very negative and false impression of the judiciary that while three crore of delayed cases are stuck in the courts of India, judges are on a beach somewhere on vacation. The fact of the matter is that courts are now by and large able to dispose of cases equivalent to the number of new cases filed each year (about two crore filing and about two crore disposal); 40 per cent of the five crore cases processed each year in India’s judicial system (some two crore cases filed annually) are therefore less than one year old.

The problem is dealing with the roughly three crore cases that are in backlog. From 1925, the suggestion has been made that a separate, one-time effort is needed to dispose of the backlog, segregated from the processing of current filings. After nearly a century, this proposal may now be implemented as one of the decisions of the recent conference of Chief Justices and Chief Ministers. Of these cases, 1.9 crore are between two and five years old. Some 23 per cent of the cases (1.1 crore) are over five years old. While for subordinate courts the “five plus” (more than five years old) cases are 23 per cent of the overall cases, these cases comprise 43 per cent of High Court cases.

Proposals for judicial reform, including to increase the number of judges, should not be seen in isolation. The fundamental struggle over the competing visions of India has profound implications for the country’s judicial system. Expanding the number of judges as the Chief Justice of India demanded is essential for strengthening the progressive, democratic vision of India. The vision for judicial reform in India, and the performance metrics of the judicial system, should consciously support the progressive, democratic vision of India. Lawyers, law teachers and judges should play a proactive role in bringing about the democratic social transformation envisaged in the Constitution.

G. Mohan Gopal is a former Director of the National Judicial Academy, Bhopal, and a former Director of the National Law School of India University, Bengaluru.