IN the last two decades, even as India has rapidly grown, its GDP and invested more than ever before in infrastructure and industry, it has struggled to upgrade the capacity of its justice system.

‘Justice’ is both a core value and an important ideal for a civilized society to aspire to. Central to the understanding of justice is that when conflicting claims – of resources, opportunities, rights and freedoms are put forth, they are resolved by determining what individuals are entitled to have, in a manner that is both fair and just.

Quite simply, justice should be understood as an essential public good. Such goods possess two main characteristics – the first is that they are non-rival, which means that the consumption of the good by one individual doesn’t diminish the ability of others to consume it. Second, public goods are ‘non-excludable’; no one can be prevented from enjoying them. Recognising justice as a public good isn’t simply for populations that find themselves directly in contact with the system; its larger purpose is that each person should have free and fair access to the justice system so as to secure effective remedy in the face of violations. Justice M. N. Venkatachaliah, one of India’s finest jurists, emphasises the criticality of a credible justice system to democracy when he says that, ‘If a sizeable section of people lose faith in their governance structures and in the justice dispensation in society, a socially negative critical-mass occurs, which can result in sweeping cynicism that unleashes a power of destruction.’

The delivery of justice, as an essential service, is guaranteed through the constitutional promises of ‘equality before the law’ (Article 14) and ‘the protection of life and personal liberty’ (Article 21). As a sovereign function that cannot be undertaken by any other actor, it is the prerogative of the state to ensure access to justice. Every government, therefore, is duty-bound to provide an impartial, efficient, responsive and accessible justice system to all. Presently, however, the justice system in India is a luxury, only within the reach of the privileged and powerful few.

The India Justice Report (2019), looks at these deep-seated structural deficits through unimpeachable data that make the system dysfunctional. It is a first of its kind index, which ranks Indian states on their capacity to deliver justice, on the four pillars of the justice system: police, prisons, judiciary and legal aid. In doing so, it underscores the urgent necessity in filling the deficits affecting it and suggests some key practical measures that could spur reform.

 

Since independence, numerous commissions and committees have made thousands of recommendations for each sub-system as if each is a monolith working in isolation from the other. In reality the working of each sub-system – police, prisons, judiciary and legal aid – is inextricably inter-linked. The India Justice Report examines quantitatively the four ‘pillars’ that support the justice system using only government data. These pillars are filtered against six main themes – budgets, infrastructure, human resources, workload, diversity, and ‘five-year trends’ – to assess where a state stands, not simply vis-à-vis others, but against the standards they have set for themselves. It consolidates data, otherwise disparate and siloed, to present a complete picture of the state of justice in India.

The available data paints a grim picture. It highlights that each individual sub-system is starved for budgets, human resources and infrastructure; no state is fully compliant with the standards it has set for itself be they quotas for women or for scheduled castes, scheduled tribes and other backward classes; and that rural India faces greater hurdles in reaching institutions of justice than urban India. The report aims to demystify the functioning of the justice system that has hitherto been shrouded in mystery by bringing together data on nearly 80 indicators across pillars. The report’s findings allows for an identification of specific pain points which, if repaired, could remove bottlenecks to efficient functioning as well as show up the infirmities within each system and allow for analysis of the knock on effect each has on the other.

Moreover, given that the justice sector has been largely inaccessible to reformative efforts driven by the public, unlike in the case of sectors such as education, health and food safety for instance, the ranking of states is an effort aimed not only to provide a birds-eye view of the system, but to propel states to improve themselves. The identification of deficits in capacity across the four pillars can enable amelioration with relative ease. These corrections, both urgent and necessary, can be encouraged by way of the seven ‘nudges’ the report recommends. These are practical and workable suggestions to spur momentum for reform, improve a state’s future ranking and more importantly, improve access to justice for all.

 

Human resources are the foundation on which all pillars of the justice system rest. The report revealed huge vacancies across all four pillars and in each state. On an average, the police have a vacancy of 23% (as of January 2017), prisons 33-38.5% (as of December 2016) and the judiciary between 20%-40% across the High Courts and lower judiciary. (2016-17) The figures in some states are nothing less than alarming. As of January 2017, there was a shortfall of 63% among officers while the constabulary was at a 53% vacancy against its sanctioned strength.

Women are practically invisible at the higher ends of any of the subsystems and even at the bottom end they, like Dalits, are hugely under represented, for instance there are only 7% women in the police, nationally. Unfortunately, there is no data on religious minorities, who in a democracy committed to diversity, need to be counted.

Uttarakhand’s prisons were functioning with an average cadre (guard) staff vacancy of 72%. Nationally, one in every four sanctioned High Court judge positions had not been filled in all ‘large and mid-sized states’ (so categorised because they house a population above 10 million).

 

In light of the massive vacancies facing the system, the report firstly recommends undertaking a cost-benefit analysis that quantifies the cost of reducing vacancies against the socio-economic cost of failing to address crime, the large number of undertrials in Indian prisons and judicial delay caused by high workloads, burgeoning civil litigation and inadequate manpower. Based on this analysis, addressing human resource issues should be undertaken on an urgent footing.

The result of staff shortages is an increased workload on functionaries: one subordinate court judge for over 50,000 people in 27 states and Union Territories (UTs); more than 1900 persons served by a single police person in Andhra Pradesh; one sanctioned correctional officer in Uttar Pradesh’s prisons looking after an average of more than 95,000 prisoners. Needless to say, the workload stress is as bad for the functionary as it is for the dispensation of justice.

A 5-year trend analysis shows how states are displaying an uneven intention to reduce vacancies across functionary positions in the justice system. Between 2012-16 and 2013-2017, Gujarat consistently reduced its vacancies across all pillar posts and positions, while Jharkhand had seen an increase in its vacancies over the same time period. Vacancies also affect the ability of states to meet their diversity targets. Diversity reinforces the notion of equity and equality, promotes inclusiveness, and most importantly raises public trust in the system.

Women, for instance, have the poorest representation across the justice system. Nationally, they account for 7% of the police (as of January 2017), 10% of prison staff (as of December 2016) and about 26.5% of all judges in the High Court and subordinate courts (2017-18). Nowhere except in the lower judiciary in some states had the 33% reservation figure been reached. The data also affirms the existence of a ‘glass ceiling’, where most women tend to be clustered amongst the lower ranks.

 

Nationally, a majority of states are also unable to meet their declared caste quotas. Nationally, only six states and UTs, across each of the categories – Scheduled Caste (SCs), Scheduled Tribe (STs) and Other Backward Class (OBCs), were able to meet or exceed the sanctioned figure they set for themselves. Karnataka was the only state to have very nearly filled officer level reservations in all caste categories. The report therefore urges that the need to fill vacancies also offers a pathway to address the diversity shortfall as we must ensure that the make-up of the justice system reflects the diversity of the society being served.

Justice is everyone’s need and everyone’s right but even here there is a rural-urban divide. The report finds that the rural is disadvantaged: urban police stations in a majority of large states serve smaller areas and smaller populations. Nearly 80% Indians are eligible for free legal aid under the NALSA Act but, in terms of adequate infrastructure for legal services, in 2017, a total of 14,161 clinics existed across around nearly 600,000 villages which means on average, one legal services clinic serves 42 villages.

The 2011 regulations require clinics to be set up in all villages or cluster of villages, subject to resources. There are only 11 states and UTs where a legal service clinic covers, on average, less than 10 villages. In UP, this figure is as high as one clinic for every 1603 villages. This disparity, in accessing justice between rural and urban populations, should be remedied. All persons should have an equal opportunity in accessing justice delivery institutions and therefore the report recommends an increase in the availability of justice services in rural areas.

Budgets indicate the priority afforded to each sector. Poor budgetary allocations plague this essential sector and within it allocations are skewed. Taken nationally, police budgets on average accounted for 3-5% of state expenditure, on the judiciary and prisons, the average spend was 0.5-1%. No state or UT except for Delhi spent even 1% of its budget on the judiciary. Despite being an essential public good necessary for the protection of fundamental rights, low or declining budgets to the justice system have so for not raised a public outcry unlike health and education, perhaps because the consequences of this are not fully understood.

 

Over five years (FY 2012-2016), increases in budgets for the police, prisons and the judiciary are not keeping pace with the overall increase in state expenditure. For instance, while most states show an increasing annual spend on the judiciary, this is proportionately less than the increase in the overall expenditure by the state. So, during that five year period, the report shows that for instance, Rajasthan saw a difference of 12 percentage points between its judiciary and the overall state spend, i.e. while the overall budget grew 20%, its judiciary budget grew only 8%. Across the country, Punjab was the only state to see significantly higher increases in its allocations, against increases in overall state budget. The report therefore calls upon state governments to ensure that the allocations to all pillars of the justice system – legal aid, prisons, judiciary and police – keep pace with increasing costs and do not fall behind allocations in other sectors.

 

The report shows in general, the number of cases pending is on the rise as more than 2.3 million cases have been pending for more than 10 years, across courts (2019). In Bihar, nearly 40% of all cases in the lower courts have been pending for over five years (August 2018). As of 2016-17, only six states and UTs, i.e. Gujarat, Daman and Diu, Dadra and Nagar Haveli, Tripura, Odisha, Lakshadweep, Tamil Nadu, and Manipur managed to clear as many court cases as were filed. While as on August 2018, Bihar, UP, WB, Odisha, Gujarat, Meghalaya and Andaman and Nicobar Islands, had nearly one in four cases pending for more than five years.

The fifth nudge pertains to instituting measures which would allow for the periodic review of systems and the creation of short and long-term plans. This should be done in consultation with experts and key stakeholders, who can closely monitor the implementation of this plan and regularly report on plan activities. At the moment reviews are sporadic and often triggered by crises instead of being integrated into the system. Take the example of Case Flow Management rules, which consist of a set of practices and rules that ensures that a judge or an officer of the court creates, adheres to and implements the time frame for the lifecycle of a case.

A three-judge bench of the Supreme Court of India, in Salem Advocate Bar Association v. Union of India had first introduced this concept, requesting the High Courts to finalise the Model Draft Rules recommended by a committee headed by the then chairman of the Law Commission, Justice Jagannadha Rao. These remain, however, unimplemented across state High Courts and lower courts. The monitoring of plans, created in consultation with experts and stakeholders, would go a long way in reducing deficits in the system.

The last two nudges push towards openness in data collection, thereby encouraging evidence based policymaking. It proposes an increase in transparency within the justice system through the regular publication of verified and accurate data which can be effectively used to inform policy and practice. A step towards this can be made in the form of demonstrable compliance with Section 4 of the Right to Information Act, 2005 with its obligations of proactive disclosure.

Supplementing this, state governments should also ensure the undertaking of periodic empirical research, to study different facets of the justice system in India, to ensure a better informed, and an evidence based approach to policymaking. This would also enable a more holistic assessment of the justice system, of the needs of the people it serves, and also, what, capacity wise, is realistically needed to fulfil them. For instance, while important, the themes of oversight and accountability could not be assessed since the relevant information was not consistently available across pillars – institutions of police oversight remain complied with only on paper; prison and judicial mechanisms remain hidden from public knowledge while legal aid ones are still in a nascent stage. It is only ensuring compliance with such practices that can help rekindle trust in the system and would help foster a culture of transparency and accountability.