Fixing the Judicial Backlog

In Accelerating India’s Development, Karthik Muralidharan says:

“Resolving disputes and delivering justice are fundamental roles of a state.”

In India, the judicial system moves too slowly. On most other topics, it is the executive’s responsibility to fix and improve things. But when it comes to the judiciary, there is pushback. By the judiciary. Sometimes because the constitutional boundary between the two arms is being violated. And at other times, out of pure self-interest. What then are possible solutions?

 

One non-controversial measure the legislature can take is to simplify the laws and repeal outdated and conflicting laws. Another measure for the legislature is to keep in mind the practicality and costs of enforcing laws that they pass.

 

Most cases in India are at the state level (80% of cases are below district level), so improving judicial efficiency requires states to take the necessary measures. Focusing on the lower judiciary will yield the maximum benefits.

 

We hear stats on the backlog count, how long cases have been going on, how long undertrials languish in jail. The biggest reason for that is not political interference; rather, it is understaffing of judges. Which in turn is tied to low budgetary allocations. It’s easy to say allocate more to the justice system, but that would reduce allocations to, say, social welfare schemes, hardly a good choice in a poor country. Besides, which kind of allocations do you think directly affect more people and thus win politicians more votes?

 

Adjournments are a problem too. The high-profile cases make us think the causes for that are always manipulative; but often, they are valid reasons. Besides, rushed justice can produce wrong outcomes. No, the real problem with adjournments is the uncertainty around it. This leads to a lot of inefficiencies – people come to court to find the case is adjourned; conversely, one can’t be sure which/how many cases will be heard on any given day and so people hang around the courts just in case their case comes up that day. Streamlining the list of reasons that allow for adjournments and then enforcing the filing for adjournment at least a couple of days in advance (with some exceptions) would reduce a lot of wastage of time by taking those decisions offline.

 

A slow system increases the cases that are “handled” by all kinds of actors, including khap panchayats, religious figures and the local mafia. Adding a single judge to each district court would speed up things, reduce the backlog, and increase economic activity. (The impact on economic activity should make it easier to defend such a decision – it more than pays for itself). A problem with this solution is the shortage of qualified candidates for judges. One solution could be to have judicial clerks (like in the US) – they could reduce the judge’s workload for certain activities, and also serve as a training ground for future judges. Since the clerks would be younger, they will also adopt newer tech faster.

 

Land and property disputes account for two-thirds of district cases. These not only clog up the judicial systems but also delay or block the use of land in economically productive activities (sale, collateral, construction etc). The reasons for this include multiple agencies issuing documents, different ways of establishing ownership, and complicated rules on the allowed use of land (construction, farming, industries). This is an area the executive could help with, by simplifying the process and creating electronic land ownership records.

 

Other steps can be for the legislature to look at the data of cases. Which laws involve the maximum cases? Is it because the law is ambiguous? Or because the law didn’t consider the complexities of real life? Are well intentioned laws causing too many side effects e.g. prohibition laws lead to alcohol supply going underground towards which law enforcement is diverted, creating a vacuum wrt other laws and a spike in other crimes which then lead to more court cases? A data led approach can lead to better and practical laws.

 

High court judges have short tenures and are appointed from other states (to reduce corruption and favouritism). But this approach leads to people unfamiliar with the state in power for short periods and having neither the knowledge nor the tenure to drive positive changes to the system. As mentioned earlier, such topics are further muddied by the fear that the legislature would end up controlling the judiciary, a violation of a core principle of our constitution.

 

The positive I found in all this was that many of the solutions sound practical, non-controversial and not affecting powerful figures. In other words, they sound do’able.