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Interview with Justice A.P. Shah, Chairman of the Law Commission
The Law Commission of India recently submitted its 245th Report to the Law Ministry. The Report is the first scientific attempt to define and measure the backlog in India’s lower courts. The Commission’s chairperson Justice A.P. Shah spoke to Rukmini S. on how to go about clearing the backlog.
Some lawyers argue that fast-tracking some cases ‘slow-tracks’ others, if more judges aren’t appointed. What are your views on fast-track courts?
Fast-track courts, according to me, are not the solution to the problem. Too many cases are being fast-tracked: sexual cases, cases against legislators, corruption cases. But our perspective should be to bring systemic reform to all levels of the judicial hierarchy.
Fast-track courts decide the cases in a shorter period, but when the appeals are filed in higher courts they are stuck for a long period. Secondly, fast-track courts are not working very satisfactorily in some cases. In my experience, there has been a complete violation of due process in the eagerness to decide the cases early sometimes. Even basic rights, basic processes, are not followed. So, I am not a great admirer of fast-tracking cases.
The report’s finding is that traffic and police challans make up more than a third of institutions and pendency is revealing.
Our recommendation is that traffic challan cases should be excluded from the system. While I was Chief Justice of the Madras High Court, I established an evening court to deal with this administrative work for some time. But it is my view that it should be taken out from the judicial system. You don’t need to call them courts; as we’ve suggested, they could be staffed by recent law graduates. It will be good experience for them. We can have these ‘courts’ in the morning and evening; it will be convenient for people.
This should not be limited only to traffic challan cases. According to me, all petty cases should be taken out of this system. Even petty criminal cases should go out. Courts should be dealing with serious criminal offences, not with petty cases. The court system is already bogged down by institutions and arrears.
Here we can really encourage plea bargaining, which has not really picked up in India even though there is now an amendment to the Criminal Procedure Code. The problem with plea bargaining is that the stigma remains because there is a conviction. We should have some sort of a system where there should not be any conviction at all; it should be more like a compounding of the case, a settlement of the case. I am recommending this for all petty cases.
The report repeatedly notes the poor state of data including definitional issues, inter-State differences, and outright errors and inaccuracies. Would fixing judicial data — from the lowest courts to the Supreme Court — be an important starting point?
High courts count data in various ways. For instance, some High Courts count interlocutory applications as a separate institution for disposals and pendencies. As a result, a single case can be counted multiple times. There has to be uniform data collection and data management.
The Supreme Court has taken an initiative for process re-engineering. This is re-engineering of the practices and procedures prevailing in district courts, both civil and criminal, and to modernise and update them. The Supreme Court has called for and received reports from all the High Courts. Those reports are now referred to the Law Commission which will now identify the best practices. The uniform method of collection of data will also be a part of this. It should be completed in the next 2-3 months. We will have uniform procedures for the whole country including the procedure for collection of data and data management. This is very significant.
Could you tell us a little more about the timelines and performance benchmarks that the report also identified as key to systemic reform?
It is difficult to lay down specific timelines for cases. But broadly, petty cases should not take more than three to six months, complicated cases should not take more than two years… you can have broad timelines. But what we propose is you should have the judge strength which is in a position to dispose [of] the cases within a reasonable time, say within three years, which we take as a benchmark. Otherwise we will require a judge strength of three or four times the present number which is simply not going to happen.
This is not the answer to the quality of judgments; this is just about disposal of cases. In many cases, the quality is seriously compromised. The High Court has to monitor both, not only the rate of disposal of cases but also the quality…the quality should not be compromised in this great hurry to increase the disposal rate.
It is only when a judge is due for promotion that the judgements are read. Performance is not regularly assessed. This work is ordinarily done by judges in the High Court but the judges are busy with their own work. So we have to develop systems to lay norms for performance assessment.
Even in the higher judiciary, when it comes to promotions, performance is not really considered. Even in the Supreme Court, the collegium does not have the kind of infrastructure to read judgements delivered by a particular judge and assess his performance.
The report clearly and scientifically identifies the size of the problem and the number of judges needed by States. Chief Justices have repeatedly called for more judges, as has the Law Commission. What do you feel is the binding constraint, and how can it be overcome?
There was a categorical assurance by the Ministry of Law and Justice that the judge strength in the lower courts will be increased by 100 per cent. In our report we pointed out that that’s really not necessary. Some increase is necessary, but in different courts at different levels we need increase in different proportions. But some of the State governments are not very enthusiastic about the increase in the number of courts. I also feel in some States there is a problem of attracting talent. This is a problem in the North-East and several other States.
The need of the hour is an All-India Judicial Service. At least 50 per cent of the posts should be filled up at the trial and district court levels from such a service.
The Law Commission of India recently submitted its 245th Report to the Law Ministry. The Report is the first scientific attempt to define and measure the backlog in India’s lower courts. The Commission’s chairperson Justice A.P. Shah spoke to Rukmini S. on how to go about clearing the backlog.
Some lawyers argue that fast-tracking some cases ‘slow-tracks’ others, if more judges aren’t appointed. What are your views on fast-track courts?
Fast-track courts, according to me, are not the solution to the problem. Too many cases are being fast-tracked: sexual cases, cases against legislators, corruption cases. But our perspective should be to bring systemic reform to all levels of the judicial hierarchy.
Fast-track courts decide the cases in a shorter period, but when the appeals are filed in higher courts they are stuck for a long period. Secondly, fast-track courts are not working very satisfactorily in some cases. In my experience, there has been a complete violation of due process in the eagerness to decide the cases early sometimes. Even basic rights, basic processes, are not followed. So, I am not a great admirer of fast-tracking cases.
The report’s finding is that traffic and police challans make up more than a third of institutions and pendency is revealing.
Our recommendation is that traffic challan cases should be excluded from the system. While I was Chief Justice of the Madras High Court, I established an evening court to deal with this administrative work for some time. But it is my view that it should be taken out from the judicial system. You don’t need to call them courts; as we’ve suggested, they could be staffed by recent law graduates. It will be good experience for them. We can have these ‘courts’ in the morning and evening; it will be convenient for people.
This should not be limited only to traffic challan cases. According to me, all petty cases should be taken out of this system. Even petty criminal cases should go out. Courts should be dealing with serious criminal offences, not with petty cases. The court system is already bogged down by institutions and arrears.
Here we can really encourage plea bargaining, which has not really picked up in India even though there is now an amendment to the Criminal Procedure Code. The problem with plea bargaining is that the stigma remains because there is a conviction. We should have some sort of a system where there should not be any conviction at all; it should be more like a compounding of the case, a settlement of the case. I am recommending this for all petty cases.
The report repeatedly notes the poor state of data including definitional issues, inter-State differences, and outright errors and inaccuracies. Would fixing judicial data — from the lowest courts to the Supreme Court — be an important starting point?
High courts count data in various ways. For instance, some High Courts count interlocutory applications as a separate institution for disposals and pendencies. As a result, a single case can be counted multiple times. There has to be uniform data collection and data management.
The Supreme Court has taken an initiative for process re-engineering. This is re-engineering of the practices and procedures prevailing in district courts, both civil and criminal, and to modernise and update them. The Supreme Court has called for and received reports from all the High Courts. Those reports are now referred to the Law Commission which will now identify the best practices. The uniform method of collection of data will also be a part of this. It should be completed in the next 2-3 months. We will have uniform procedures for the whole country including the procedure for collection of data and data management. This is very significant.
Could you tell us a little more about the timelines and performance benchmarks that the report also identified as key to systemic reform?
It is difficult to lay down specific timelines for cases. But broadly, petty cases should not take more than three to six months, complicated cases should not take more than two years… you can have broad timelines. But what we propose is you should have the judge strength which is in a position to dispose [of] the cases within a reasonable time, say within three years, which we take as a benchmark. Otherwise we will require a judge strength of three or four times the present number which is simply not going to happen.
This is not the answer to the quality of judgments; this is just about disposal of cases. In many cases, the quality is seriously compromised. The High Court has to monitor both, not only the rate of disposal of cases but also the quality…the quality should not be compromised in this great hurry to increase the disposal rate.
It is only when a judge is due for promotion that the judgements are read. Performance is not regularly assessed. This work is ordinarily done by judges in the High Court but the judges are busy with their own work. So we have to develop systems to lay norms for performance assessment.
Even in the higher judiciary, when it comes to promotions, performance is not really considered. Even in the Supreme Court, the collegium does not have the kind of infrastructure to read judgements delivered by a particular judge and assess his performance.
The report clearly and scientifically identifies the size of the problem and the number of judges needed by States. Chief Justices have repeatedly called for more judges, as has the Law Commission. What do you feel is the binding constraint, and how can it be overcome?
There was a categorical assurance by the Ministry of Law and Justice that the judge strength in the lower courts will be increased by 100 per cent. In our report we pointed out that that’s really not necessary. Some increase is necessary, but in different courts at different levels we need increase in different proportions. But some of the State governments are not very enthusiastic about the increase in the number of courts. I also feel in some States there is a problem of attracting talent. This is a problem in the North-East and several other States.
The need of the hour is an All-India Judicial Service. At least 50 per cent of the posts should be filled up at the trial and district court levels from such a service.
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