14 June 2018
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John Rawls, an American moral and political philosopher in the liberal tradition, defines Justice as basic fairness in multidimensional interactions between humans and their institutions. The purpose of such varied interactions, he states is to balance democracy with striving for security. (John Rawls, 2003). Access to justice is a fundamental aspect of democracy, and it constitutes the most basic rights of the people. A society in which various kinds of justice problems disproportionately affect the poor and marginalized is on a democratic decline.
It is no news that the institution for delivering justice is among the most crucial, yet in our country, it is most starved of resources as compared to the other two pillars of democracy i.e. the legislature and executive. Inordinate delay in getting justice, particularly for the poor and marginalised has taken mythical proportions. It is estimated that around 3.3 crore cases are pending in different courts across the country. Assuming that each of these cases involves at least two people (in most cases, the number is higher), and both people have a family of 5 members, the lives of at least 33 crore men, women and children, which comprises over 25% of India’s population are affected directly in this legal tangle. This is a matter of serious concern. For disposal of these cases, adequate infrastructure, including judges, supporting staff, lawyers, courtrooms etc. would be required, which are not available now. Further, new legislations both criminal and economic as passed by Parliament keep adding to the burden on the judiciary. As a result, pendency of cases goes on increasing every year.
Huge infrastructure gaps as well as phenomenal vacancies of well over forty thousand judges, magistrates and judicial officers underscore the enormity of the situation. Astonishingly, a sitting Chief Justice of Supreme Court literally, cried a few years ago in a public meeting in the presence of the prime minister over the issue of vacancies in the judiciary and the inordinate delay in filling up these vacancies. In High Courts and District and Subordinate Courts the vacancy percentage is over 40 and over 23 respectively. Even an unlikely quick action towards filling up all these vacancies will not dramatically change the situation on access to justice at the ground as the total number of sanctioned positions itself is quite low. Going by the sanctioned strength India’s ‘judge to people ratio’, an indicator of access to justice is far lower than some of the developed countries. As against ‘a judge to people ratio’ of 50 per one million people in some developed countries, India has the ratio of a mere 17.8 whereas many of the bigger states like Uttar Pradesh, Bihar, Madhya Pradesh and Tamil Nadu etc. have a ratio less than the average (https://www.thebetterindia.com/91249/union-budget-2017-law-justice-ministry-government/).
A recent article by Usha Rani Das (India Legal, 26th May, 2018) comprehensively analyses judiciary’s budgets from the perspective of resource adequacy and its efficienct utlisation. Based on the analysis of successive Union Budgets, Das concludes that despite the crying need for speeding up and modernising the grossly inefficient justice delivery system, a large chunk of the meager funds allotted in the Budget remains unused. Notwithstanding a well over hundred percent increase in allocation between 2014-15 and 2018-19 from 2047 crore to 4386 crore, allocation to judiciary against the total budget has remained between 0.2 percent and 0.4 percent for many decades now. Concerning utilization efficiency, against a Rs 5000 crore special grant to improve delivery of justice sanctioned by the 13th Finance Commission to the States which was to be used over a 5 year period, only 20 percent was ultimately utilised.
The problem is not limited to the inadequacy of resources and inefficiency in utlisation alone, it is much deeper. Since the responsibility of providing resources to judiciary rests with the executive, the stark difference in perspective of the two institutions, therefore, influences the budgeting for judiciary. A World Bank paper by David Webber elucidates this. It states, “the requirements of the executive branch of government—especially for fiscal restraint and accountability in financial management—are often perceived as infringing on the principles of the judicial branch (“fairness” and “independence” in the administration of justice).” The problem, the papers states is not simply insufficient funds, but a mutual perception that neither branch properly understands, or respects, the other’s mandate and goals (Law and Development Working Paper Series, No.3.). Another view is that governments use their function of budget allocation to judiciary as a lever to exercise control.
The above discussion underscores two points; a) the institution for ensuring justice i.e. judiciary is highly under resourced on account of a variety of reasons, including financial, political and institutional, and, b) consequently, delivery of justice, more so timely delivery of justice to citizens in general and marginalised people in particular is among the most outstanding yet least focused issues.
Advocacy by the civil society in the domain of justice has focused more on the delivery aspect of justice than the institutional strengthening of the judiciary. The need for the civil society to engage more with the issues related to strengthening of judiciary, through significantly enhanced budget allocations and their efficient utilisation in order to ensure access to justice was never more pertinent and urgent. In a time when effective public service delivery forms the core agenda of civil society, delivery of justice can no longer be treated as separate from basic services like health and education. The technical nature and hitherto less explored complexity of judicial system must not deter us from taking this forward.
The views expressed in this piece are those of the author, and don’t necessarily reflect the position of CBGA. You can reach Asadullah at
as*******@cb*******.org
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