One Wheel Alone Does Not Move a Chariot
Fixing India’s Justice Delivery System

The Times of India | November 25, 2022
Kautilya’s Arthashastra—written around 2300 years ago—says, “Judges shall discharge their duties objectively and impartially so that they may earn the trust and the affection of the people.” Going back further in time, Shukra’s Nitishastra says, “The king should appoint those who are virtuous, well-tried and capable of bearing the burden of the administration of justice.” And digging deeper, the Brihaspati Smriti says, “A judge should decide cases without any consideration of personal gain or any kind of personal bias; and his decision should be in accordance with the procedure prescribed by the texts. A judge who performs his judicial duties in this manner achieves the same spiritual merit as a person performing a yajna.”

It is evident that ancient India accorded tremendous importance to the effective and efficient dispensation of justice. But I wonder what Kautilya, Shukra or Brihaspati would have thought of India’s justice delivery system today. India has the largest number of pending court cases in the world. Over 47 million cases are pending in various courts across the country. According to an earlier paper by India’s Niti Ayog, it would take more than 324 years to clear the backlog. In his 1993 film Damini, Sunny Deol uttered those immortal lines, “Tareekh pe tareekh, tareekh pe tareekh,” but are we any better off in 2022 than we were back then? So, what can be done to reform and revitalize our judicial system? The solutions are staring us in the face. We simply need the will to get them done.

First, the centre and state governments are party to 46 per cent of the pending cases in Indian courts. A simple negative list which identifies instances in which government and its agencies are barred from going to court would be a great starting point in cutting down government-initiated litigation, thus easing the burden on our judicial system.

Second, we need more judges. As of 2020, we had 21.03 judges per million people. Compare that to the UK with 51 judges per million and the US with 107 judges per million. The tussle between the executive and the judiciary in deciding judicial appointments must be resolved on a war footing. Judges appointing other judges via a collegium cannot continue indefinitely and a reasonable formula must be negotiated between the judiciary and the executive.

Third, judges must be left free to do what they are supposed to: judge. Indian judges spend far too much time on administrative work such as scheduling hearings, deciding admission and reviewing docket completion. Think about how the appointment of external agencies has made our passport offices more efficient. In most developed countries, the administrative tasks of courts are supported by an external agency and India should be no exception.

Fourth, create disincentives for litigation. Certain categories of cases such as dishonouring of cheques or landlord-tenant disputes are voluminous and clog the system. Establish rules by which the losing party would incur exceptionally heavy costs. Several frivolous disputes would be settled out of court owing to the risk associated with pursuing them.

Fifth, preserve our existing talent. High court judges retire at 62 and Supreme Court judges retire at 65. Contrast that with the UK or Canada where judges are allowed to continue in service until they are 75. In the US, judges of the Supreme and Subordinate courts hold office for life. Why should India lose its most experienced judges because of a retirement age that was fixed when life expectancy was lower?

Sixth, leverage technology. Even if we appoint judges to all vacancies, we will still have insufficient courtrooms. During the Covid-19 lockdown, most hearings had to move online. Imagine the infrastructure that could be saved if certain categories of cases moved permanently to an online disposal system. Similarly, computer algorithms could be used to manage the roster and allotting of cases thus eliminating bias.

Seventh, introduce an Indian Bail Act. Around 76 per cent of prisoners in Indian jails are those awaiting trial. Let that sink in—three out of four prisoners are not even convicted. This is despite repeated directions by the apex court that bail ought to be the norm and jail the exception. Just imagine the load that could be taken off the prison system if bail was granted in timely fashion.

Eighth, make adjournments frightfully expensive. Once a date is fixed, no adjournment should be possible unless the side that requests it is willing to pay the other side’s legal costs along with a substantial penalty. One will see adjournments dramatically reduce.

Ninth, cut down the volume of appeals. Why should the Supreme Court be reviewing hundreds of Special Leave Petitions each day? Almost 40 per cent of the working days of Supreme Court judges are consumed in determining admission. In fact, 90 per cent of those SLPs are indeed rejected, a mammoth waste of time. In fact, an intermediate appeals court is necessary.

Tenth, bring the judiciary in line with best management practices. For example, why do courts need vacations? Sure, judges should be entitled to take leave just like they would in a corporation, but does the entire corporation need to pack up for the summer? Similarly, shouldn’t the productivity of judges be reviewed periodically by the Chief Justice? Is the outdated British-raj dress code really necessary? Should the judiciary be protected by fear of contempt when every other institution can be critiqued? Can’t language used in legal documents be simplified so that it may be understood by all?

But most importantly, the judiciary and the executive cannot continue their adversarial approach. It was Kautilya who wisely wrote that "one wheel alone does not move a chariot". It is time for these two institutions to work together for the good of the nation. In Kautilya's own words, "In the happiness of his subjects lies the king’s happiness, in their welfare his welfare. He shall not consider as good only that which pleases him but treat as beneficial to him whatever pleases his subjects." Please admit this urgent prayer, m'lords.