In 2023, India became the most populous country in the world, and it will probably remain so for the next century and beyond, unless it breaks up into smaller nations. The fact that India has survived in one piece despite its incredible diversity in language, religion, cuisine, race, ethnicity, culture, and creed is itself a miracle of the modern world. The Soviet Union broke up into ten countries, and Canada almost broke up in the 1960s due to its two-language diversity (French and English).
Our own twin, Pakistan, split into two. Therefore, India’s survival and progress as a unified nation for seventy-five years is a major reason to celebrate. However, should we also celebrate the fact that we are the most populous nation? That is a double-edged sword. The most crucial resource for a nation’s development is human capital—people with skills, education, drive, entrepreneurship, and opportunities. But the same demographic dividend can become a disaster if no investment is made in enhancing human capital and if there are no productive opportunities for the young. This is the economic challenge.
India’s economy also crossed the 3-trillion-dollar mark four years ago. It has been among the fastest-growing major economies, racing ahead. In 2023, it pipped the United Kingdom to become the fifth largest economy in the world, and the Prime Minister asserted in his speech before the US Congress last month that India is expected to reach rank 3 in the coming years. Fast growth will soon lead us to the major milestone of $5 trillion.
But there is another milestone that we crossed last month that we cannot be proud of. India now has more than 5 crore pending cases across all courts in the country. Thanks to digitalization, we can see a running ticker on the e-courts website. As of July 23, the pendency was 6.06 million cases in high courts and 44.3 million cases in district and taluka courts. Three years ago, in a speech at NALSAR University, the Chief Justice of India said that the total number of pending cases was 32.45 million. That implies a growth rate of nearly 18 per cent every year. The economy is growing at 6 per cent, the population is growing at 0.8 per cent, and the backlog of the case load is growing at 18 per cent. The aggregate case load data can be broken down into how many cases are pending for less than one year, how many are pending for between 1 and 3 years, and so on. A whopping 25 per cent of all cases have been pending for more than five years.
As per a 2018 report from the PRS Legislative Research, one-fourth of all cases with High Courts were pending for more than ten years, with an aggregate number of over one million. The Allahabad High Court had the highest pendency, with more than 7 lakh cases. There is now detailed and extensive data in digital form with the National Judicial Data Grid, allowing for further analysis and insights.
There is a delay in processing both civil and criminal cases. In the lower judiciary, between 70 and 80 per cent of the pending cases are criminal ones, but the ratio is reversed in the higher courts. One of the pernicious effects of pendency is on those who are in prison and are called “undertrials.” These are all technically innocent people since they have not been proven guilty. Nearly 4 out of the 5 lakh people who are thus incarcerated are undertrials, i.e., held without a conviction. Their liberty has been denied since the judicial system is unable to process their cases.
In an even more bizarre twist, there are people who have been in prison for a duration longer than the time they would have to serve if they were convicted as guilty. These are extreme examples and a blot on our democracy. But even the large pendency of all others is a black mark. Justice delayed is justice denied. The average time taken to dispose of cases in India is 30 months, compared to 6 months in the European Union, as per the Economic Survey of 2019, published by the Union Finance Ministry. India’s ease of doing business record is tarnished because of the shoddy speed of dispute resolution.
So, what are the reasons for the increasing backlog? The first reason is the inadequate number of judicial officers. Across the board, there are an average of 20 per cent unfilled vacancies, and these numbers are even higher in the higher judiciary. Simply filling these posts can close the gap between the new case load and the disposal rate of the existing case load.
The second reason sounds silly but is serious and was quoted by the Chief Justice of India. In a speech last December, he said that 6.3 million cases have been considered delayed due to the non-availability of counsel. And another 1.4 million cases are delayed as they await some kind of document or record. This is unacceptable inefficiency, especially when the whole system is being made digital.
The third reason for the piling up of cases is due to misaligned incentives, especially when a government officer is involved. For instance, if a lower tribunal gives an order against the income tax claims of the government, the officer involved will almost surely appeal, even if it is an open and shut case. This is for fear of being accused of corruption or collusion.
A fourth reason for delay could be the arbitrary discretion in the listing order of cases. There is an impression that the elite can jump queues and get instant hearings while the masses have to wait.
A fifth reason for the pileup of cases is the absence of arbitration and mediation as a credible first option. In fact, in developed countries like the US (which is quite litigious), if a criminal case goes to trial, there is a 90 per cent chance that the defendant will be found guilty, and that too in quick time. Hence, many cases do not go to trial and end up with out-of-court settlements.
In India, thanks often to shoddy preparation, the cases going to trial offer a chance of more than 50 per cent acquittal. Judicial reform, which can speed up the delivery of justice, give meaningful out-of-court settlement options for redress, and also fully utilise the power of digital and artificial intelligence, is the need of the hour.
(The writer is a noted economist)
(Syndicate: The Billion Press)