The Wall Street Journal published a fascinating article yesterday on daily life at India’s largest courthouse, the Allahabad High Court. It tells a tale of extreme delay, extraordinary inefficiency, and basic injustice stemming from a lethal combination of judicial vacancies, outdated filing systems, and lax protocols for advancing cases to resolution. Among the facts presented in the article:
- Nearly 45% of judicial positions on the court are unfilled, due in large part to an ongoing battle between the judiciary and the other branches of government about the most appropriate methods for judicial selection.
- On average, it takes nearly four years to adjudicate a simple commercial dispute in India — twice as long as in Brazil and more than three times as long as in the United States.
- More than 86% of high court cases in India take 10-15 years to adjudicate. Fewer than 5% are resolved in less than five years.
- The Allahabad High Court receives nearly 1,000 new cases every day. Almost half are filed by the government. Judges on the court even have a name for newly filed cases that have not even been looked at yet — “backlog fresh.”
- It is so unpredictable which cases will be called on any given day that one lawyer profiled has associates spread out across all the courtrooms to track if — and when — any of his 34 open lawsuits on the court’s calendar might be taken up by a judge.
- Even though rural litigants often have to travel a whole day to appear in court, it is commonplace that their cases will not be called and another day will be wasted.
- The system encourages delay by allowing lawyers to file an “illness slip” to postpone a hearing, whether or not they are actually sick.
- Case records are badly misfiled–piled on floors and chairs, and intermingled by year. In the story, a worker searched eight hours for files for the next day’s cases, and was still missing 17 of 65 by day’s end.
This is a jaw-dropping account, the paragon of “justice delayed is justice denied.” What can we make of it?
First, it is worth noting the way resource dependence impacts the court’s autonomy and ability to do even its basic work. The resource problem is twofold: not enough judges and too many filings. Down almost half its judges, the court cannot possibly keep up with filings, and each day it falls farther and farther behind. One judge who was profiled had 233 “backlog fresh” cases on the day in question, but had processed only 85. Judges who must return to older cases–in some instances, stemming from the 1980s–encounter stale evidence and cloudy memories of witnesses. Second, the cases keep coming because the government continues to file them at a very high rate. Judging from the photographs in the story, the court is drowning–literally and figuratively–in paperwork.
But it is not only about resource deficiency. While the judges seem attuned to the injustice of the situation–the same judge with the 233 “backlog fresh” cases noted that “Basic liberty is at stake here”–they have not adopted sufficient internal procedures and administrative mechanisms to alleviate the problem. The filing system is a disaster. Lawyers can easily delay hearings further, and in any event often have no idea if and when a hearing will even take place. Without predictable hearing dates and hard deadlines, lawyers have no real incentive to prepare for any given case, which only exacerbates the problem.
Third, there does not appear to be much of a culture of settlement or alternative dispute resolution, which keeps every case in the system even when it might be more effectively resolved or disposed of in a different setting.
Revamping the system will take a lot of work, both internally and externally. The courts will need to reach an accommodation with the other branches of government to expedite judicial appointments, and to authorize the court system itself to engage in more robust self-administration. The courts will also need to employ technology much more regularly to track cases properly. And a culture change will be necessary for both the bench and bar–a prescription that is easy to state but very difficult and time-consuming to implement.
The United States Courts faced a similar dilemma one hundred years ago, which a terrible backlog of cases, no efficient administration, and a severe shortage of judges. As I explained here, that court system was able to modernize itself largely though the decades-long efforts of two Chief Justices, William Howard Taft and Charles Evans Hughes. Does India have its own William Howard Taft? The litigants of the Allahabad High Court surely hope so.
The Interdependent Third Branch 