Continuing with a practice started last year, the Economic Survey 2018-19 devoted an entire chapter, ‘Ending Matsyanyaya: How to Ramp Up Capacity in the Lower Judiciary’ (bit.do/e2qGB), on increasing judicial efficiency by increasing the number of judges at the level of the district judiciary. While it’s great that the most important policy document of GoI is giving judicial reforms the attention it needs, there is much to disagree with its conclusions.
The long and short of the Economic Survey’s conclusion is that the ‘backlogs’ associated with the Indian judicial system can be cleared with a ‘relatively small investment’. It applies the ‘case clearance rate’ (CCR) to provide a rough estimate of the number of judges required to be appointed to reduce pendency.
CCR, as explained by the Survey, “is the ratio of the number of cases disposed in a given year, to the number of cases instituted in that year, expressed as a percentage”. So, if, say, 75 out of the 100 instituted cases are disposed within the same year, the CCR would be 75%. As per this methodology, the judiciary needs to balance the institutions with the disposals in a year to achieve a 100% CCR and ensure no backlogs.
To achieve this 100% CCR, the Survey recommends increasing the number of judges by using a simple input-output model — that is, if 75 judges can achieve a 75% disposal, an increase by 25 judges should result in a100% CCR. Based on this methodology, it calculates that India needs roughly 8,152 additional judges at the subordinate court level to clear the present backlog of 3.04 crore cases in the next five years.
This methodology proposed by the Survey is similar to a July 2014 report of the Law Commission, which was criticised by the Supreme Court’s National Court Management System (NCMS). In its 2016 report, NCMS pointed out that the Law Commission’s recommendations to calculate the number of judges based on perjudge disposal rates were flawed, as not every case is of similar complexity, and the number of judge hours required for each case type can differ drastically across different categories of cases.
For example, a prosecution under the Negotiable Instruments Act for the bouncing of a cheque can take a few months. On the other hand, a traffic challan can be disposed in a single hearing. A complex whitecollar crime, however, can take a few years to resolve. The same stands true for civil cases.
The formula of case disposal per judge does not take into account these differences. Thus, each case needs to be weighted as per case type and complexity before an estimate of the number of judges can be prepared.
To be fair to the Economic Survey, it does acknowledge these issues when it states that the “complexity and gravity of a case type can determine the stages and process that it must go through”. The problem, however, is that the Survey fails to explain the manner in which its proposed methodology incorporates this crucial caveat even as it provides a rough estimate of 8,152 judges.
The more pertinent question, perhaps, is why are we not following a weighted system to calculate the time required for disposal of cases. The answer, as conceded by the Law Commission in its 245th report, while referencing this model of calculating judge strength, was, “All the information required to run this model for Indian courts is not available. In India, the system does not have any information about the time required by judges to resolve each type of case.
This lack of information points to a larger systemic problem.” The solution, then, is to start collecting and publishing such data in a more systematic manner.
Originally published – https://economictimes.indiatimes.com/blogs/et-commentary/whose-count-of-judges-is-it-anyway/