What’s Choking The Indian Judiciary
India has a problem with a judiciary that takes too long. The first sufferers of this inefficiency are the litigants in the country as justice delayed is justice denied. It also has macroeconomic effects. Solving this problem is critical to sectors ranging from finance to power.
The World Bank had ranked India among the worst performers when it came to enforcing contracts. Between 2017-18, when India jumped in the overall ranking from 100 to 77, it moved from 164 to 163 on the metric of enforcing contracts. This is especially worrying because lower ranks should be easier to improve, than areas where India is already closer to the global frontier. This poor performance rests on judicial efficiency and the inability to improve the functioning of the courts.
This is not due to a want of trying.
Since 1958, the law commission has dedicated eight reports to identifying and solving the problem of slow courts. Multiple government committees have been set up to solve the problem. Even the judiciary has made multiple attempts to introspect and solve the problem.
Why does India fail to solve the problem of poorly functioning courts? One reason could be that the problem has not been identified and measured correctly. Since 1958, one common reason has been forwarded for the failures of the Indian judiciary which is a low-judge-to-population ratio. But is this the correct measure to identify the functioning of the Indian court system? Another metric paints a different picture of judicial efficiency in India.
It is true that India has a low judge-to-population ratio. Compared to developed nations, India has only 21 judges per million citizens while the US has 107 judges per million. This disparity has been pointed out as the reason for judicial delays. Since 1987, the judiciary has been espousing a target of at least 50 judges per million citizens. The low ratio is compounded by vacancies in the judiciary. For example, out of the 840 positions for High Court judges, more than a third are vacant. The lower judiciary in India has vacancies of around 20 percent.
At first glance, the low judge-to-population ratio compounded by vacancies seems like a reasonable explanation for India’s slow judiciary. But, India’s judges-per-million-citizens may not be strictly comparable with advanced economies. India’s low median income means that many individuals may not be taking part in economic transactions that could lead to litigation. Even when such situations arise, many Indians may be too poor to approach the courts. Partly Indian courts are not as accessible as courts in advanced economies because of the long time it takes to resolve cases. The fact that Indian courts take longer may discourage legitimate claimants from approaching the court system, in the first place. For these reasons, there is some reason to doubt if the judge-to-population ratio accurately measures judicial efficiency.
Already, some parts of the government have moved away from this measure. The Law Commission in 2014 proposed measuring disposal rate that tracks the number of cases resolved/disposed of by a judge, and used this to determine the number of judges required to solve all the pending cases. The law commission calculated the number of judges required in the subordinate courts of different states. The results varied widely. Delhi would need only 70 more judges, that is, 27% of strength in 2012, in the lower judiciary, but Bihar would require 1,624 new judges, that is, 262% of 2012 strength, if pending cases needed to be solved within three years. Some courts have proposed modification of this disposal rate model by adding other variables like the complexity of the cases, or the judicial time taken per case. However, the results do not vary significantly.
This new method of measurement is superior to the older system of comparing India to other (developed) countries in terms of judges per million. However, this method does not allow a comparison between the Indian judiciary and other nations. This is because the disposal rate merely calculates the number of additional judges needed to clear the backlog of cases, at the current judicial efficiency. The efficiency of the current judicial system is considered a constant factor in these measures.
Measuring the efficiency of a system requires a comparison with other systems or a hypothetical best-case scenario. However, unlike with computers and engines, there is no hypothetical efficiency limit for the judiciary. India’s judicial efficiency can be measured against other countries, but using a different denominator. For instance, measuring judges per 10,000 cases filed.
This measure is superior to using the population in judge-per-million citizens because it avoids the problems of differing rates of litigation in other countries. There are some discrepancies in how cases are counted in other countries so the comparisons are not entirely like-to-like. We find data on judges-per-case filed across countries, from two sources. The first is an academic paper by Ramseyer and Rasmusen in 2010, and the second is a report by the Supreme Court of India in 2016. The following table presents this comparison.
India fares surprisingly well where judges have to deal with 217 new cases every year. In contrast, judges in the U.S. have to deal with more than 550 new cases each year. All these countries are based on the common law system and therefore have similar legal systems, so there is reason to believe that this need for excess judges is not a result of some unique feature of the Indian legal system.
It is difficult to address problems whose causes have been incorrectly identified. For too long, the judicial delays problem in India has been attributed to the shortage of judges. First, it was based on the number of judges per million citizens, and then it moved to judges required to decide all the pending cases. However, even in the newer system, the efficiency of the judges is not considered. A different picture emerges when judicial efficiency is measured in terms of judges-per-case-filed then we see a very different picture. This analysis points to the fact that there may be other reasons for the judicial delays problem in India. It could arise from some unique feature of Indian laws, lack of investment in other parts of the judiciary, or some other unknown reason.
The economic growth of India may depend on solving judicial inefficiency in multiple ways that range from freeing up resources locked up in litigation; resolving tax disputes to provide certainty to law; giving confidence to anyone entering into a complex transaction; and many more. Further examination on identifying the causes of judicial inefficiency is required before we attempt solutions. The Covid-19 pandemic led to many changes in court functioning; this presents an opportunity to study other solutions like changes in technology. Apart from technology, the behaviour of the litigants in addition to the judges may provide insights into the functioning of the courts. This behaviour of parties may be driven by incentives created by the law itself, especially where Indian law has diverged from other common law countries.
Shubho Roy is a researcher at XKDR Forum. Karan Gulati provided research support.
The views expressed here are those of the author and do not necessarily represent the views of BQ Prime or its editorial team.
