Why India's courts are struggling to find judges

The lower courts, where the maximum cases are stuck, struggle to find judges, thanks to poor salaries on offer and limited growth opportunities

The problem of a massive backlog in the judiciary is not new. But courts in India present a stark picture of what happens when the judicial system fails to keep pace with time: there now exists an unprecedented pile-up of over 30 million cases across courts in the country. With 20 million new cases being filed each year, this backlog, according to the now-famous statement made by Justice V V Rao, may take as long as 320 years to clear.

Clearly, the judiciary is failing in keeping the promise of a speedy trial, but how have things come to such a pass? Experts blame it on an overburdened justice system. As early as 1987, the Law Commission had taken note of the crisis before the judiciary and had advised immediate appointments to fill vacancies, as well as a three-fold increase in the judge-to-population ratio from the then existing levels to 50 per 100,000 citizens.

The situation since has not taken a turn for the better; the present judge-to-population ratio is an abysmal 17, with the shortfall hitting subordinate judiciary the hardest. It accounts for 75 per cent of the total backlog. The higher courts do not fare any better. Currently, there are 5,000 vacancies in lower courts and as many as 458 in high courts.

With thousands of people languishing in jail for years waiting for trial, in April, Chief Justice T S Thakur almost broke down before a gathering of chief ministers when talking about the country’s judiciary. He implored the government to urgently increase the sanctioned strength of subordinate judges from the present 21,542 to 40,000 in order to fix the system that, he said, was on the brink of collapse.

No easy fix
The judiciary’s problem, however, runs deeper. In the subordinate judiciary, appointments are made solely by the respective state governments. This is unlike the collegium system that prevails in the higher courts. While the system involves competitive exams and promotions are based primarily on Annual Confidential Reports and seniority, there are many loopholes that allow incompetent people to get hired and promoted. As a result, there is a severe lack of talent in the lower judiciary.

In the 2014 Delhi Judicial Services exam, for example, out of 1,000 applicants, only 115 qualified for the 85 posts available. What was startling, however, was that of the 885 who failed, 68 were judges in other states. Even the 115 who had initially qualified were shown to be related to previously appointed judges in one way or another.

The chances of a lower court judge being promoted to the high court or Supreme Court are also paper thin. There exist a disproportionately high number of judges selected as direct appointments from the Bar in the high courts, as compared to elevations from the subordinate judiciary.

The decision in the ‘S P Gupta case and the Advocates on Record Association vs the Union of India’ has further taken the sheen off jobs at the subordinate level. It mandated that all promotions in the Supreme Court be determined only on the basis of a candidate’s years of service as a high court judge. This whitewashes all the time served by judges in lower courts before their elevation to the high court, making the chance of appointment to the apex judiciary practically impossible.

“This is a huge disincentive to young lawyers who see direct appointments to the high court as a far more lucrative option,” says Surya Prakash, programme director at Daksh, a judicial think tank. The alarming trend is clearly visible in the present composition of the Supreme Court where out of 29 judges, only Justice C Nagappan, Justice R Banumathi and Justice P C Pant have worked in the subordinate judiciary.

Another factor that goes against lower courts is remuneration. High court judges earn between Rs 80,000 and  Rs 1,00,000 a month in addition to numerous perks that include house, car with a driver, guard, cleaner,  steno as well as travel and telephone allowances.

In contrast, the benefits afforded to lower court judges are fewer and salaries considerably less lucrative. “Each state has its own system to determine (judicial) payouts even though they are largely financed by central schemes or Finance Commission grants. There is a dire need to re-ignite the national debate on how the subordinate judiciary should be funded such that the independence and efficiency of these courts, which affect the citizens the most, are not hindered,” says Prakash.

In 1996,  the government established the National Judicial Pay Commission to recommend salary structures for lower court judges. The commission proposed a salary range between Rs 12,000 (Civil Judge) and Rs 21,000 (District Judge). Yet, as the recommendations are discretionary, they have still not been adopted by some states, leading to the recent call for a centrally-administered All India Judicial Commission to regulate service conditions for the lower courts.

“Whatever the recommendations of any commission or committee, state governments should ideally take the initiative of ensuring that pay scales and terms and conditions of service of judges are sufficiently attractive for talented young lawyers to take up the judiciary as a career option,” says Alok Prasanna Kumar, a senior resident fellow at Vidhi Centre for Legal Policy.

Last year, the Judicial Pay Commission came up with a fresh set of recommendations. Among other things, it proposed a threefold increase in salaries but, as with the first commission,  it is for the states to implement it.