The year 2020 was challenging for most public institutions in India. Due to the coronavirus pandemic, the lower house of parliament functioned only for thirty-four days in the 2020–2021 fiscal year, the fewest days Indian lawmakers have gathered in a single year in the country’s history. Central, state, and local government officials were preoccupied with responding to the grave public health crisis, which has officially claimed the lives of more than 400,000 Indians as of August 2021 and perhaps many more.
Like other institutions in the country, the Indian judiciary has found it challenging to function amid the risks and constraints created by the pandemic. Data from the National Judicial Data Grid shows that, in 2020, the country’s high courts—the apex courts in each Indian state and union territory—disposed of fewer than half as many cases as they did in 2019. However, since the number of cases instituted fell only by one-third, the total number of pending cases increased. This problem has major consequences for India’s judiciary and its wider political system.
India’s Daunting Case Backlog
Of course, this pendency problem is a long-standing issue across the Indian judiciary. At present, the high courts list 5.8 million pending cases, even though their average rate of disposal between 2015 and 2019 was about 1.8 million cases per year. In most years, the number of cases disposed of is lower than the number of cases instituted, so the problem keeps getting worse.
In practice, this backlog means that many important questions of law do not receive timely answers. Important constitutional law cases—many of them relating to citizens’ fundamental rights—have been pending for years or even decades. In criminal cases, delays create great hardships, as the accused—many of them housed in jail—often must wait years for a verdict. Pendency also makes economic activity difficult, as contract enforcement becomes inordinately expensive. According to the 2020 edition of the World Bank’s Ease of Doing Business rankings, India ranked 163 (out of 190 countries) on contract enforcement.
Delays in India’s judiciary system are not restricted to the courts; pendency is also an endemic problem in India’s specialized tribunals. Following the liberalization of the Indian economy in the early 1990s, statutory tribunals began to proliferate across economic sectors, yet their performance leaves much to be desired. Take, for instance, the National Company Law Tribunal (NCLT), a high-profile panel responsible for resolving India’s debt problem. Academics and practitioners of law have regularly highlighted the NCLT’s weak, inadequate infrastructure.1 In recent years, these structural shortcomings have meant that the tribunal has been unable to adhere to the time limits mandated by the new Insolvency and Bankruptcy Code, stymying this landmark reform effort intended to provide an exit route for failing firms. A recent report by Alvarez and Marsal, a management consultancy, notes that the NCLT admitted approximately 480 cases in each quarter in the 2020 fiscal year. If the NCLT continues at this pace, it would take six years to clear the backlog.
The Causes of India’s Case Backlog
Pendency has several causes on both the demand side (the growing number of fresh cases) and the supply side (the slow disposal rate). Demand-side causes include the expansive jurisdiction granted to the judiciary in the Indian Constitution, excessive government litigation, rapid social and economic changes leading to more disputes, and so on. Supply-side causes include civil and criminal procedure codes that do not encourage quick case disposal, the readiness of judges to hear complaints under their writ jurisdiction and to take suo moto (judicial action taken without any request by the parties involved) cognizance of matters, and the country’s large number of judicial vacancies.
Judicial Vacancies and Productivity
Many experts have suggested that the Indian government should tackle the challenge of increasing pendency in Indian courts by appointing more judges to the bench. While this reasoning seems intuitive (and, undoubtedly, India has very few judges per capita compared to other leading economies), it is also important to consider the productivity of the country’s judges. To this end, judicial productivity is calculated as the ratio of judges to case disposals per year. While empirical evidence on this metric is sparse, one 2008 study suggests that judicial productivity in Delhi district courts is about half of that in Australian courts. Increasing the number of judges without finding ways to improve their productivity is, at best, a half measure.
Budgetary Allocations for the Judiciary
While most institutions demand more inputs, it is equally important to focus on the utilization of inputs. Take, for example, the financial management of India’s judicial system. Legal scholars have long held that India does not spend enough on the judiciary. Recently, the India Justice Report 2019 found that, out of the twenty-seven states and two union territories covered by the study, the growth rate of judicial expenditures was lower than the growth rate of total expenditures in twenty-one of them.
Analysis by this article’s authors on government spending on the administration of justice by the Indian central government and five state governments (Bihar, Delhi, Gujarat, Karnataka, and Odisha) over the last decade shows that actual expenditures regularly fall below (and often well below) the requisite budgetary allocations.2 For instance, in Bihar, each year between fiscal year (FY) 2014 and FY 2018, the state judiciary’s actual expenditures fell short of the revised estimate by more than 20 percent. This gap suggests that the Indian judiciary is not able to budget properly or spend the (inadequate) funds allocated to it. This deficiency is likely due to lacunae in the judiciary’s internal administrative mechanisms. Because the budget for each fiscal year is based on the prior year’s expenditures, this failure to spend down the funds already allocated leads to a consistent decline in the budgetary share allocated to the judiciary. Each year, the vicious cycle repeats.
Case Management
Similar problems can be seen regarding case management. The objective of case management is to ensure that judges’ time and cognitive resources are utilized efficiently. However, due to inadequate preparation before judges hear a case, a judge’s time is easily wasted once legal proceedings begin. Scheduling problems also lead to innumerable delays and adjournments. Since the early 1990s, the Indian government has launched a litany of schemes and projects to computerize the judiciary’s proceedings. Most of these initiatives have simply involved injecting computers into existing court processes without fundamentally rethinking the design of these internal processes. For instance, e-filing in the Supreme Court of India has been available for many years. Yet advocates-on-record, who are entitled to act for and to plead for a party before India’s Supreme Court, prefer the physical filing process since it has traditionally cost less than e-filing. Moreover, if there are any defects in an e-filed petition, the advocate-on-record is required to rectify them and ultimately submit a hard copy. Such procedural rules defeat the basic purpose of e-filing.
Unfortunately, computerization has also failed to improve the case scheduling process. In India, there is no preliminary conference whereby parties can give the registry, the court’s administrative secretariat, a sense in advance of how long they estimate oral submissions will take. As a result, lawyers and litigants are forced to guess when a listed matter is likely to come up for a hearing on a given day. Furthermore, various routine applications—such as those involving direct, unscheduled requests from lawyers to judges through the mentioning process—often must be placed before a judge instead of being resolved by the registry. Myriad procedural issues like these end up wasting precious judicial time and, as a result, negatively affecting judicial productivity.
Ideas for Judicial Reform
Running an efficient, modern judiciary necessitates successfully carrying out a range of administrative functions, including activities related to managing and maintaining the courts (such as case, facility, financial, and human resource management). To be clear, better administration is no more a panacea for judicial productivity than increasing the number of judges. Improvements to the adjudication process are also necessary. However, solving some administrative problems could reduce the constraints under which judges work.
Delegating Administrative Functions
Presently, the respective registries of the courts are mostly tasked with carrying out the judiciary’s administrative functions. This structure has limited the potential for professionalizing these ranks and building up expertise. Many other countries have accepted that the administrative functions of courts and tribunals should be supported by a separate professional agency with administrative expertise, specialization, and modern management practices and technologies.
For instance, Her Majesty’s Courts and Tribunals Service (HMCTS) in the UK provides an integrated system of support—including infrastructure and financial resources—for the administration of courts in England and Wales as well as most tribunals throughout the UK. The HMCTS is an agency under the Ministry of Justice, but it is structured as a corporation that operates based on a partnership between the lord chancellor and the lord chief justice.3 The two partners do not interfere, either directly or indirectly, in the day-to-day operations of the agency. The agency is board-driven, and its chief executive is responsible for its day-to-day operations and administration.
Another example comes from the United States, where the Administrative Office of the U.S. Courts (a specialized agency established in 1939 within the judicial branch) provides a broad range of legislative, legal, financial, technology, management, administrative, and program support services to federal courts.
Canada, too, has an entity called the Courts Administration Service, which was established under the 2002 Court Administration Service Act. This body provides registry, judicial, and corporate services to the Federal Court of Appeal, the Federal Court, the Court Martial Appeal Court of Canada, and the Tax Court of Canada. Its chief administrator acts as the chief executive officer and supervises the organization’s staff.
Leaders within the Indian judiciary have also acknowledged the importance of creating a professional agency to support the administrative functions of tribunals. In various cases going back to the 1990s, the Supreme Court has recommended such reforms. In 1997, in L. Chandra Kumar v. Union of India, the Supreme Court suggested establishing an “authority charged with supervising and fulfilling [the] administrative requirements [of tribunals].”
It is worth noting, however, that such recommendations from the judiciary have two distinct motivations: to enhance the quality of tribunal administration and to make tribunals independent of their sponsoring ministries. Often, the second reason has seemed to dominate judges’ thinking. Judges have appeared more concerned about placing the agency under the purview of the Ministry of Law and Justice rather than the sponsoring ministry of the tribunal in question so that tribunals can act more independently. Therefore, although the idea of a separate agency for tribunal administration has long been discussed in India, the objective of administrative efficiency has probably always been secondary to concerns of judicial independence.
The Supreme Court’s insistence on placing the agency under the Ministry of Law and Justice may be why the idea has not gained much traction within the executive branch. If the agency were to be placed under this ministry, the common perception would be that all other ministries would lose sponsorship of what had been seen as their tribunals. However, this loss need not be the case. The agency could merely provide standard administrative support services to all the tribunals, irrespective of which ministry sponsors the tribunals and holds the power to appoint their members. Decoupling discourse on administrative efficiency from discourse on the ministerial allocation of tribunals would probably help the idea gain more traction within the executive branch.
The idea of establishing a specialized agency to manage the judiciary’s administrative functions has also been proposed a few times by Indian government committees and advisers. In 2015, the Ministry of Finance’s Task Force on Financial Sector Appellate Tribunal recommended the creation of an agency specializing in court administration to support the administrative functions of the proposed tribunal. In 2019, the ministry’s annual economic survey included a recommendation to create “. . . a specialized service called [the] Indian Courts and Tribunal Services . . . that focuses on the administrative aspects of the legal system.” The envisioned major roles for this specialized service included providing administrative support functions needed by the judiciary, identifying process-related inefficiencies and advising the judiciary on legal reforms, and reengineering certain inefficient processes.
Until recently, there was no clear proposal from the judiciary to implement these ideas. Since the matter pertains to the administration of the judiciary, the reforms require buy-in from the country’s senior judges. In this context, two recent proposals are worth considering. In March 2021, the chief justice of India proposed that a specialized infrastructure corporation be established to modernize the infrastructure of the judiciary. One month later, the Supreme Court’s e-Committee released a draft Digital Courts Vision and Roadmap, which proposed establishing a professional agency for managing judicial technology.
Other Reform Ideas to Consider
Although these proposals are worthy of deeper exploration, reform advocates should be careful not to repeat the mistakes of the past. Reforms require clarity of thought. For a while, there was much confusion about the idea itself. For instance, the phrase “court and tribunal services,” as commonly used in the UK, has been widely misinterpreted by many people in India—including lawyers, judges, and journalists—as involving the appointment of judiciary staff instead of the creation of a separate organization to which the administrative services could be outsourced. Policymakers working on tribunal reforms tend to focus only on judicial functioning (including judicial independence)—probably because it is important for the epistemic community in the field of law.
For example, the 2017 Finance Act reorganized and rationalized the tribunal system, focusing primarily on the merging of tribunals and on tribunal members’ conditions of service, but it neglected the administrative structure of tribunals. Fortunately, Chief Justice N. V. Ramana has clearly articulated the idea of a National Judicial Infrastructure Corporation, thereby focusing on the judiciary’s administrative functions.
Reformers would do well to bear in mind five lessons based on the experiences of India and other countries.
- Pursue comprehensive reform carefully: Reforms should seek to remake the administrative functions of the judiciary in a comprehensive manner, albeit over time, so reforms can accommodate various stakeholders’ ideas and interests. The road map for reform should seek to create a professional, competent agency to provide administrative support to courts and tribunals. Instead of focusing narrowly on individual pillars of the system—such as real estate and information technology systems—the focus should be on improving judicial administration in a holistic manner. For instance, instead of superimposing computers on top of existing paper-based processes within the court registry, the goal of reforms should be to completely reengineer these processes, leveraging the best available technology to achieve the desired outcomes. The existing registries of the courts and tribunals might view these changes as a threat, so it is important to protect their interests so that the transition is not undermined.
- Focus on professionalization and expertise: A new administrative agency for the courts should be led by people with expertise in the management of large systems, especially in the design and implementation of process-related reforms. At present, there is a lack of professional expertise in the administrative divisions supporting the judiciary. A new agency should be designed on the basis of expertise and specialization, relying on modern management practices and technologies. It should build domain expertise in procurement, financial, human resource, and facilities management. Its focus should be on providing the best possible administrative support to the judiciary.
- Separate judicial and administrative functions: Most administrative functions should be placed with the agency so that day-to-day administration does not consume judges’ time—which should largely be spent on their comparative advantage: judicial functions. At the same time, the judiciary should be able to hold the agency accountable for its performance, likely through the oversight of a board.
- Facilitate cooperation and coordination between the judiciary and the rest of the government: Any reforms to revamp judicial administration will require the judiciary and governments at the union and state levels to work together to build the administrative agency. During the initial stages, governments will be required to commit to allocating significant financial outlays, and they may also need to support the administrative agency with procurement of facilities and technology systems, recruitment of personnel, and so on.
- Insist on judicial oversight: While cooperation between the judiciary and the rest of the Indian government will be essential to build and sustain the administrative agency, it is also important to respect the independence of the judiciary. Therefore, the government should see its role as that of an enabler in improving judicial performance and should not intrude into the judiciary’s domain. This balance can be achieved if board oversight of the agency primarily rests with the judiciary.
Conclusion
To start reducing its judicial case backlog and achieve a robust economic recovery from the pandemic, India needs a strategy that focuses on both the immediate problems facing its judiciary and their root causes. The Indian government should address the institutional weaknesses that hold the country’s economy back. The problems of the Indian judiciary are among the most important institutional challenges the country is facing, and the public health crisis has made them worse. The idea proposed by India’s chief justice is perhaps the most consequential in many years. It is now up to the judiciary and the rest of the Indian government to make the most of this proposal.
Notes
1 The NCLT also suffers from a lack of adequate member strength. The presidency has been vacant since January 5, 2020.
2 Authors’ analysis based on a dataset of budgetary figures curated from government budget documents. See the hyperlinks above for select examples of these documents.
3 A framework document reflects an agreement reached by the lord chancellor, the lord chief justice, and the senior president of tribunals on the partnership between them in relation to the effective governance, financing, and operation of the UK judiciary’s administrative service.
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