The India Justice Report 2019 released this month offers a comprehensive analysis of India’s justice system, ranking 18 large/mid-sized and seven small states according to their capacity to deliver justice to all. The rankings clearly indicate the obstacles that prevent the judiciary from reaching its true potential
By Ishita Purkaystha
A sui generis report prepared by Tata Trusts, ranking the Indian states and union territories, has brought the spotlight on the justice delivery system and its four pillars—police, judiciary, prisons and legal aid. Prepared in collaboration with the Centre for Social Justice, Common Cause, Commonwealth Human Rights Initiative, DAKSH, TISS-Prayas and Vidhi Centre for Legal Policy, the inspiring foreword written by a former CJI, Justice MN Venkatachaliah, sums up the need for all key stakeholders to pay close attention to what the report reveals.
It examines five-year trends to demonstrate a state’s intention to improve access and delivery of justice by increasing resources, removing shortfalls and clearing blockages. The report uses objective and measurable government data concerning structural anatomy of the justice system and eschews direct correlations to perceptions of safety, performance or accountability. Maharashtra tops the chart of large and mid-sized states with the highest cumulative score on individual counts while Tamil Nadu and Kerala have improved their performance. In the small states’ category, Goa scores the highest with fair ranking on individual counts as well. The report reveals that Gujarat is the only state to reduce vacancies across all the pillars in a span of five years.
The rankings clearly indicate the obstacles preventing lower courts from delivering their mandate. There are 28 million cases pending in subordinate courts in India. The police, finds the report, are also understaffed and under-equipped. Legal assistance is often inaccessible because rural women do not disclose their problems to male paralegals. Prisons are overcrowded because a majority of the inmates are undertrials—awaiting investigation, inquiry or trial—and not convicts per se. To an extent, Lok Adalats have contributed in reducing the workload of courts. In 2017-18, Lok Adalats disposed of 7.85 million cases. Of these, 5.92 million cases were disposed of by National Lok Adalats (conducted by NALSA), 2.82 million of which (or 48 percent) were in the pre-litigation stage. Another 1.93 million cases were disposed of by Lok Adalats held by the State Legal Services Authority (SLSA), of which 0.98 million (or 51 percent) were in the pre-litigation stage.
While responsive policing is a must to enable a safe environment for citizens, there are vacancies in the ranks of the constabulary and officers. Each state manages an autonomous police force, with personnel from two distinct cadres—the state police service and higher officials drawn from the Indian Police Service. What is disconcerting is that there is no identifiable trend in the ratio of vacancies between the constabulary and higher officials as it varies greatly from one state to another. Out of the 18 states in the report, Tamil Nadu ranks the highest in policing. It has a score of 6.49 out of 10. The situation in Uttar Pradesh and Bihar looks worrisome as they have managed only scores of 2.98 and 4.28, respectively.
Based on the available data, the police have a vacancy of up to 23 percent of capacity. The report states that the ratio of filling vacancies and increasing spend on the police in the total state expenditure is regressing. Reserved vacancies also go unfilled for years. The report, however, admits that public data on police budgets is insufficient to conclude whether budgetary allocations are adequate, utilisation effective or if police performance will improve in case the budget is increased. The Padmanabhaiah Committee on Police Reforms, in its 2000 report, suggested a 1:4 ratio between higher officials and the constabulary. Nineteen years later, state governments are nowhere close to that goal.
According to the report, women make up for only seven percent of the police force and the situation takes into account the improvement in recruitment over the past five years. It also flags the lack of diversity in the police force. The transgender community, religious minorities, and so on still find themselves unrepresented in the force. The upshot of this is that the common man does not identify with the police for seeking help or providing support in an investigation.
There are vast differences between states in the police-to-population ratio. In some states and union territories, a police station covers up to 852 sq km, while in urban districts the area covered is below 20 sq km. With transport being an issue in rural areas, this makes justice inaccessible to many.
The average jail occupancy in India is 114 percent of the total capacity of prisons. In 2016, 67.7 percent of the prison population consisted of undertrials lodged in jails. The scenario speaks volumes about the pendency of cases in our courts. Whereas the prison occupancy rate in Nagaland is at a mere 20.5 percent, Chhattisgarh stands at a staggering 222.5 percent with Uttar Pradesh at 208 percent. A shift towards a safe, clean and rehabilitative environment in prisons remains a distant dream. It requires changes in law, ideology of policymakers, attitude of prison administrators and significant improvement in conditions on the ground. The attitude of “punishment” and “retribution’ has not yet changed to a “correctional, reformatory and rehabilitative” approach.
State governments still do not have prisons on their priority list. Although state expenditures have increased with each passing year, prison expenditure remains stagnant. In fact, Gujarat’s prison expenditure fell by 9.3 percent in 2015-16. Only seven states and UTs have utilised their entire prison budget. Low salaries, poor training, lack of promotional opportunities, long working hours, arduous workloads and high vacancies at all levels characterise prison administration across states. With the exception of Chandigarh, Kerala and Nagaland, all states registered a high level of vacancies in 2016.
As a result, certain prisons are dependent on long-term inmates, who manage various tasks—from main gate registration to doing administrative tasks and even disciplining others. Dependence on inmates means that their unacceptable behaviour with other prisoners—exploitation, violence, collusion in illegal activities or corruption—has to go unchecked. Prison mortality rate is higher than the country’s average index, indicating lack of healthcare facilities in jails.
Uttar Pradesh is among the four states with no vacancy at the correctional staff level. But the sanctioned post is one against 100,000 inmates while Kerala, with only 7,073 inmates, has a sanctioned strength of 25 correctional staff members. Women’s share in prison service shows a fall in as many as 10 states and UTs. The Justice Mulla Committee on Jail Reforms (1980-83) suggested an All India Prison Service with appropriate job requirements, sound training and proper promotional avenues. The governments have grossly failed to implement them.
A well-functioning judiciary is vital to the maintenance of the rule of law, social cohesion and sustainable development. According to the India Justice Report, the Supreme Court had proposed the constitution of the National Court Management Systems (NCMS), in 2012. The apex court highlighted the lack of training among judicial officers to plan and prepare budgets and recommended bringing on board professionals to assist in the budgeting process.
Sadly, the judiciary often finds itself at a disadvantage because it is not generally perceived as “essential” or direct public service unlike health, housing or education. Its budget is limited to establishment costs—salary, allowances and minimum operational costs; the fund allocation does not stretch to capacity building, not to speak about innovation and experimentation. Nationally, India spends 0.08 percent of its budget on the judiciary. Only Delhi spends 1.9 percent of its expenditure on the judiciary. All other states and UTs spend less than one percent on their judiciary.
Again, vacant judicial posts have long plagued the pendency ratio in all the states and UTs. However, no direct causality has been established between the “judge to population formula” and the pendency of cases, based on available data.
While the value of gender diversity is widely accepted, the report finds that no state has adopted affirmative action for women judges in its High Courts. Only Tamil Nadu has a high number of women judges at the High Court level. The report adds that the number of women judges exceeds the 35 percent quota in the subordinate courts in Tamil Nadu.
The report highlights that 80 percent of 1.25 billion Indians are eligible for legal aid; however, only 15 million people have accessed it since 1995. What is even more depressing is that the quality of legal aid available in India is sub-par, with lack of training and monitoring of legal aid providers. The report says: “The lack of optimal financial management and well-trained human resources, poor training of legal-aid lawyers on their duties and responsibilities, inadequate performance monitoring and absence of mechanisms to gauge customer satisfaction hamper the functioning of LSIs (Legal Services Institutions) to a great extent. A bigger concern has been ensuring the quality of services provided which is directly linked to the training, documenting, reporting and monitoring of legal-aid providers. Monitoring and mentoring committees either don’t exist and if they do, their functioning is sub-par.”
One of the key lacunae is the uneven organisational practices in the delivery of legal services across districts and sub-divisions. Several states, such as Tripura, West Bengal, Telangana, Chhattisgarh, Gujarat and Uttar Pradesh, are yet to establish District Legal Services Authorities (DLSAs) in all their judicial districts. As of 2018, 664 DLSAs existed, but sanctioned full-time secretaries to DLSAs stood at 603 with actual appointments at 525 only—a deficit of 139 to 664 existing DLSAs. Further, as per 2019 data, there is an apparent uneven distribution of paralegals as well. The report says, “Para-legal volunteers (PLVs) serve as the bridge between people and the legal-aid system. 22 of 36 states and Union Territories average less than 10 PLVs per lakh population.”
Gender diversity is another crucial issue while extending legal assistance in India which has socio-cultural barriers for a majority of women. Of 63,759 panel lawyers and 69,290 paralegal volunteers (PLVs) working with LSIs across the country, only 18 percent are women. The report states: “Amongst the eighteen large and mid-sized states, Kerala ranks highest (40 per cent) followed by Karnataka (30 per cent) and Maharashtra (27 per cent). Rajasthan, Odisha and Uttar Pradesh all have less than 10 per cent. Amongst the seven small states, Meghalaya ranks the highest (54 per cent) and Arunachal Pradesh the lowest (15 per cent.).” Inevitably, the burden of all this falls on the public.
There is, again, a deficit in legal service clinics within jails. Subject to financial ability, every jail must house a legal service clinic. There were 1,062 legal service clinics (2017-18) in 1,412 jails (as of December 2016). About 3,04,000 persons approached these clinics, of whom 71 percent were provided legal assistance. Amongst the large states, Gujarat has the most legal service clinics in its jails—48 clinics in 27 jails. Punjab has 32 clinics in 26 jails; Chhattisgarh has 34 in 30 prisons. Kerala, Maharashtra and Uttar Pradesh have less than half the number of clinics required. Jharkhand, Odisha, Tamil Nadu and West Bengal do much better, with clinics nearly matching the number of jails. Barring Sikkim, most small states with fewer jails to cater to, are exceeding or nearly reaching one clinic per jail.
There is also the issue of receiving funds and their optimum utilisation. In 2017-18, six states and UTs had no funds allocated from their budgets, whereas Nagaland, Arunachal Pradesh, Manipur and Tripura saw less than 20 percent being provided by their state governments. Uttar Pradesh got 14 percent while Andhra Pradesh received more than 80 percent.
Overall, the report is a sad commentary on the government’s lack of enthusiasm to tackle vacancies, outdated legal framework and poor infrastructure, among other issues. Even with sporadic attempts by the Legislature, Executive and Judiciary, the shortfalls in the overall justice system are too many.
There is an urgent need for an appropriate authority to monitor the quality of legal assistance offered in the existing infrastructure and find ways to work on the infrastructure itself. To a great extent, the delivery of justice is directly proportional to the investments made in infrastructure, equipment, personnel recruitment, retention, quality training, and so on.
The authors of the India Justice Report 2019 have clearly noted: “The system is also deliberately kept under the aegis of the judiciary without executive interference on the plea that there is know-how as well as less opportunity for over-bureaucratisation.”
THE SEVEN NUDGES
The recommendations made in the report include:
- Undertake a cost-benefit analysis that quantifies the cost of increasing human resources against the economic price of failing to address registered crime, disorder, incarceration and judicial delay caused by high workloads and inadequate manpower. Based on this analysis, fill vacancies on an urgent footing.
- When filling vacancies, ensure that the representation of women, SCs, OBCs, STs and religious minorities is increased to assure that the make-up of the justice system reflects the diversity of the society it serves.
- Increase the availability of justice services in rural areas so as to reduce the present disparity in accessing justice that exists between rural and urban populations. This includes prioritising the availability of trained lawyers and paralegals across poorly-served areas.
- Ensure budgetary allocations to every segment of the justice system (particularly judiciary and prisons). Keep pace with increases in costs.
- Each pillar must have open systems to periodically review performance; identify issues that must be tackled; arrive at short-term and long-term plans of action through a consultative process with experts and key stakeholders; closely monitor the implementation of the plan; and regularly report on the activities it undertakes.
- Improve transparency all the way through the justice system by ensuring the publication of verified, disaggregated, accurate and timely data that is seamlessly serviceable for informing policy and practice across governance.
- Ensure that periodic empirical research is sanctioned by the government to be undertaken in an independent manner.
— Infographics from India Justice Report, Tata Trusts, New Delhi, India (2019)