Access to Justice

Reform schemes must not wander off into ADR wilderness

India is said to possess one of the fairest legal systems in the world. This is not an unreasonable assertion when one assesses the performance of the Courts only in light of judgments handed down. Yet, promptness and efficiency in access to justice are a sine qua non of the constitutional rights of the accused and the validity of the entire judicial system. A thorough assessment that accounts for access to justice and judicial delay in India would place the judicial system in a much less positive light. 

At the third conference of chief justices and chief ministers, held in September 2004, the Chief Justice of the Supreme Court, R.C. Lahoti, referred to the “meagre” allocations to the judiciary in the Government’s annual plans. In the Ninth Plan, the judiciary received a mere 0.071 percent of total Plan expenditure, while in the Tenth Plan, the allocation was 0.078 percent, Justice Lahoti pointed out. The gaps in funding undoubtedly have an impact on the increasing backlog of cases and on the quality of judgements dispensed. 

In light of its obligations under international law to “respect, protect and fulfill” the rights of its citizens, the government of India is obliged to undertake all positive measures, both in conduct and result, to remedy existent institutional anomalies that serve, intentionally or otherwise, to violate these rights. If the position taken by the Indian government is that it does not have the resources to create new posts for judges and new courtrooms, the burden lies with the government to prove this; as such acts of omission constitute a complicit violation of the rights of detainees and others attempting to access the justice system. 

The fact remains that the successive governments have failed to act on the recommendations contained in a number of studies and reports, including those submitted by the Indian Law Commission and the more recent Parliamentary Committee on Arrears in Courts (2002). 

Any attempt to address the problem of judicial delay must seek solutions within the judiciary’s existing formal structure. Several recent initiatives have sought to invest time and resources into evolving systems of alternate dispute resolution (ADR). However, this runs the risk of deflecting attention from the root causes of the formal system’s inadequacies. The founding principles of the legal system, assuring due process of the law, must remain the focus of efforts to redress injustices.

The predominant cause of judicial delay is understaffing. India has only 10 to 15 judges per million people, who are often burdened with a daily workload that exceeds their capacity by up to 500 percent. This imbalance can be attributed directly to government complacency. Beyond the unwillingness to fund the necessary expansion of judges, the delay in the appointment of judges when vacancies arise is also commonplace, and can only be attributed to governmental disorganization, as the exact date of judges’ retirement is known well in advance.  

Even so, judges are difficult to recruit as remuneration is significantly lower than those of prominent attorneys, and judges at the lower tiers of the judiciary are often under-trained. Thus, judges that may not be adequately well informed fill vacancies and can do little to reduce the backlog of cases. Judicial training for new officers and refresher courses for existing judges would aid in the reduction of arrears and the more efficient handling of cases. 

The placement of judges may also be tied to several independent variables, such as population or the litigation rate. Certain processes, such as the hearing of civil cases by panels of judges, could also be streamlined. 

But without enough courtrooms, the current backlog of cases simply cannot be accommodated. Whenever there are indications that the number of cases goes beyond the capabilities of existing courts, additional courts should be created. The multiplication of fast track courts is a positive beginning, but needs to be stepped up considerably.  

Prosecutors are likewise enormously understaffed, often resulting in adjournments as a single prosecutor is representing two separate cases at the same time. Yet, perhaps of most concern is the erosion of the independence of public prosecutors in many states of India. Despite the fact that prosecutors are duty bound not to represent any particular party and “the impartiality of [whose] conduct is as vital as the impartiality of the court itself”, a process is now underway whereby the post of Director of Prosecutions is being filled by police officers of the rank of Director General of Police, granting administrative and disciplinary control over Prosecutors. Aside from expressly violating the independence of prosecutors, this increases the risk of bias, corruption, and legal lack of expertise, and decreases public confidence in the entire legal process. Legal safeguards must be implemented to repeal this erosion of prosecutorial independence. 

The judiciary presently allows for delays in the pronouncements of judgments for up to several years, during which time undertrials are forced to remain in prison. Legally binding limits to the final length of deliberations should therefore be established. This must be applied from the lowest courts right through to the highest court.  

There are many other aspects that contribute to judicial delays, including lacunae in the criminal procedure code, methods of police investigation, general administrative disorganisation and lack of modern technology. Regarding the latter, for instance, the judicial system in India requires an immediate computerization of its internal management system. While, at present, the High Courts’ computerised transfer of materials is slow, in the lower courts it is simply non-existent.  

In each case, the solutions are the same. Change requires a commitment from the government to investing in employing and better training more judges and prosecutors, to supplying more courtrooms wherever necessary, and to enacting legislation that better regulates the efficiency of the courts. Training and supplies, however, are not enough. The current access to materials that legal practitioners require needs also to be vastly improved. The quality of law libraries at the disposal of courts in India at present is a broadly overlooked hindrance to the efficiency of lawyers and the judiciary alike.  

Alternative systems?  

Instead, a greater focus is required on institutions such as the National Human Rights Commission, the National Commission on Women and the National Commission on Minorities. We already have examples of courts delegating responsibilities to the NHRC with regard to specific cases. Advocacy efforts could focus on expanding such inter-institutional interaction.

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