Proposal to make judiciary work throughout the year

*****

There is huge pendency of more than 3.2 crore cases in Indian courts. A majority of these cases are pending for large number of years. Now, contrast it with the fact that the Supreme Court of India works only for 193 days in a year, while the high courts work for 210 days in a year and the trial courts work for about 245 days in a year. In view of these reasons, the courts in India have been facing criticism for having long vacations even in the face of huge pendency of cases. Now, the Chief Justice of India Shri R.M. Lodha has come out with a new proposal to make the Indian judiciary work throughout the year. Shouldn’t it be good news? May be. However, the devil lies in the details.

Let us first compare the number of working days of the judiciary with that of other government servants. For example, in the Central Government, out of the 365 days in a year, 104 days are taken up by Sundays and Saturdays which are holidays (due to a five-day week), and in addition there are about 16 gazetted holidays in a year. Therefore, the number of working days for the Government servants in the Central Government is approximately 245 days in a year (in addition, the Government servants are also entitled to Earned Leave and Casual Leave; however, that is irrelevant for the present discussion, since similar privileges are available to members of judiciary also, though there may be some variation in the number of days for which a particular type of leave is admissible). Thus, the number of working days for Central Government servants is more or less equal to the number of working days for the trial courts, i.e., the lower judiciary. Therefore, the lower judiciary is already working almost throughout the year, more or less at par with other Government servants. It is worth mentioning that urgent matters are always heard by vacation judges or the holiday courts even during vacations and on other holidays (including on Sundays). In view of this, the proposed system of making the courts work throughout the year is not going to make much difference insofar as the lower judiciary is concerned.

However, as mentioned above, the Supreme Court works only for 193 days in a year whereas the High Courts work for about 210 days in a year. Therefore, considering 245 days in a year as the yardstick of “working throughout the year”, the Supreme Court may have to work for an additional 52 days in a year whereas the High Courts may have to work for an additional 35 days in a year.

Let me come back to the details of the new proposal of the Chief Justice of India. He is reported to have told the Times of India: “…There is not going to be any increase in the number of working days or working hours of any of the judges. At the beginning of the year, the judges would be required to tell the desk managing court sittings when they would like to avail vacations and holidays. Accordingly, a calendar would be prepared for arranging the benches in the Supreme Court and high courts to ensure that judiciary functions throughout the year.”

So, the number of working days is not going to change! What is going to happen is that instead of all the judges proceeding simultaneously on vacation during the same period of the year (for example, the summer vacation for 2014 for the Supreme Court is being observed from 10 May 2014 to 30 June 2014 – a period of seven weeks, during which period all SC judges are on vacation barring one or two vacation benches), different judges will be going on vacation during different periods of the year. This means that some judges would always be available in the court throughout the year.

However, the very fact that the number of working days is not going to change, it is not understood as to how this proposed system will make any dent in the pendency of cases. Ultimately, the number of courts/benches working on a given day will reduce proportionately and there is hardly any difference in the total number of courts/benches held during the year. For example, if we presume that on an average 13 benches are working every day in the Supreme Court for 193 days of the year, then the total number of courts/benches held during the year is 13 x 193, which is 2509. In the proposed system, the number of working days will increase drastically, but there will be a corresponding reduction in the average number of courts/benches held on a given day, and thus the total number of courts/benches held during the year will continue to remain more or less the same. Moreover, since the average number of courts/benches held on a given day will be reduced correspondingly, the average number of cases heard per day will also reduce correspondingly, presuming that the average rate of disposal of cases by a court/bench remains the same. Therefore, there would not be any significant improvement in the disposal of cases.

In fact, it is pertinent to point out that, at present, one or two benches of the Supreme Court regularly sit during the summer vacation also. Therefore, these benches are, in fact, additional benches in the present system, that may not be needed in the proposed system. Therefore, it may perhaps so happen that the actual number of total benches in a year may actually come down, albeit to a small extent.

It is also pertinent to point out that judges may not be averse to such an idea, since the number of working days are not going to increase for them, and they will have an added advantage of choosing the vacation as per their own convenience during any part of the year. However, for the advocates, the number of working days is going to increase drastically since they will now have to remain present for all the working days throughout the year. This is so because once an advocate has accepted a particular case, he is legally bound to attend to that case as and when that case is listed in the court. But, will there be any increase in the productivity even if the advocates have to attend the courts throughout the year? Hardly any, since the total disposal of cases in a year is not going to change in view of lesser number of courts now available on a given day. It is no surprise then that the Bar Council of India has rejected the above suggestion of the Chief Justice of India.

Some people have tried to suggest that in the proposed system, even the advocates can also select their own vacation, since they are completely free to take leave and decide when not to attend the court. However, this is usually not possible for the simple reason that once an advocate has accepted a particular case, it is his legal responsibility to attend to that case as and when it is listed. Of course, there is a miniscule percentage of advocates (usually, senior advocates) who take up cases only on “per appearance” basis and do not commit for the full case on all dates. However, even such advocates may not like to go on vacation for long durations when the courts are working, since it may adversely affect their practice as well as their earnings, and moreover, a client may engage another advocate and change his loyalties.

In all fairness, I must also point out one practical possibility that may arise if the proposed system is introduced. There are many judges who do not take any leave (or take only a part of the leave) to which they are entitled under the existing rules. Therefore, under the new system, if it is not made binding on them to compulsorily go on vacation during a given year, though during the period chosen by them, there is every likelihood that many judges may not like to proceed on vacation (or may take advantage of only a part of the vacation) and may like to continue working throughout the year. A judge in a higher court is a position of great responsibility as well as a matter of great honour. Therefore, it is quite possible that certain judges may not like to proceed on vacation and may instead continue working to serve for the maximum possible number of days in their fixed tenure. Moreover, if a judge is about to retire shortly, he may decide not to proceed on vacation, since in any case after his retirement he would be getting full vacation (unless, he is inclined to take up some post-retirement assignment in some tribunal, commission, etc.). In fact, if some of the judges opt not to go on vacation, over a period of time there is a likelihood of the peer group pressure working on other judges some of whom may also be persuaded to opt out of the vacations. If it happens, then, of course, the proposed system may help in reduction of the pending cases since this would mean judges being available for more number of days in a year vis-à-vis the present system.

It is also worth noting that at present there appears to be strong resistance in the judiciary to give up the vacations. It may not perhaps be possible to discontinue the present system of court vacations in a direct manner. The proposed system may, however, be an indirect method of giving up the vacations, since in the short run the present system of forced vacations would be discontinued, and in the long run there is a possibility that more and more judges may opt not to go on vacation.

All said and done, the best option would be to gradually reduce the number of days for which the courts go on vacation in a year. The main argument that is given against such reduction is that judges need time to do research and/or write judgements and that they need long vacations for this purpose; however, this argument does not hold water. Usually, the courts work for only 5 to 6 hours per day (for example, the working hours for the Supreme Court are only 4 ½ hours, viz., from 10.30 am to 1 pm and 2 pm to 4 pm; and, moreover, on Mondays and Fridays most benches in Supreme Court usually rise by the lunch time). Therefore, some additional hours can definitely be spent every day for writing judgements, reading case papers, doing other research work, etc. In fact, it is already been done by most judges since usually most of the judges come prepared for the cases, at least in the Supreme Court, which means reading relevant papers of a large number of cases; and, likewise, many of the judgments are also written during weekends. It is also to be appreciated that the advocates also spend similar additional time after the court hours. Even the trial courts, which have more number of working days in a year, do all these additional things in the given time-frame. In fact, it’s not uncommon for other Government servants to work for 10-12 hours per day or even more. Therefore, the colonial hangover of long vacations in the courts needs to be gradually discontinued especially when the pendency of cases is huge and is in fact increasing over time. In any case, suitable arrangements can always be made by reducing the workload of a particular judge where it is absolutely necessary for a judge to spend additional time for writing a long and/or complicated judgment.

It is also worth mentioning that a large number of positions are vacant in the judiciary in spite of the fact that the judge-population ratio is already quite low in India (it is only about 12 judges for 1 million population, if we compare the actual existing judicial strength of about 15000 judges to the present population of about 125 crore). For example, in the lower judiciary, about 3300 posts of judges are lying vacant from out of a total sanctioned strength of about 17,700 judges (here). Likewise, there are about 300 vacancies in the High Courts against the sanctioned strength of about 900 judges. As of today, the Supreme Court also has 6 vacancies from out of the total strength of 31. Thus, about 20% to 25% positions in the judiciary are lying vacant. There is a crying need to fill up these vacancies urgently. Likewise, there is an urgent need to further strengthen the judiciary by increasing its total strength. The judge-population ratio in India is quite poor as compared with many other countries. The Supreme Court has itself emphasised the need to increase the strength of the judiciary five-fold. For example, see the case of All India Judges’ Assn. v. Union of India, (2002) 4 SCC 247 : AIR 2002 SC 1752, in which the Supreme Court directed that the then existing judge-population ratio of 10.5 or 13 judges per one million population be raised to 50 (i.e., about 5 times) in five years. However, nothing much has happened on this count, since as mentioned above, even as of today, the judge-population ratio continues to be only about 12 judges per million people. From time to time, in various reported cases, the Supreme Court has been merely highlighting the need for expediting disposal of cases, but no concrete steps have been taken to compel the Government to implement this direction.

It is only when the judicial strength is increased substantially and the existing vacancies in the judiciary are filled up, that the problem of huge pendency of cases can be solved. Any piecemeal solution, including the proposal of the Chief Justice of India, can only have a limited impact. As regards the advantage of having courts open throughout the year (as per the new proposal), it may be mentioned that even in the present system, urgent matters are always heard by vacation judges or the holiday courts. So, ultimately, what actually is needed is gradual reduction in the number of days for which courts go on vacation and also a substantial increase in the judicial strength as well as filling up the existing vacancies in judiciary. Only then can we have a substantial reduction in the pendency of cases. However, as explained earlier, if the new system proposed by the Chief Justice of India can indirectlylead to the actual abolition of vacation system (if over a period of time, most judges opt not to go on vacation during different periods of the year), it may definitely be a welcome change. But, given the opposition of the advocates (as indicated by the Bar Council of India) to the proposed system, it is yet to be seen as to whether or not the proposed system would be actually implemented.