The India Justice Report is an exhaustive study of the objective conditions prevailing in India’s legal system, including its bottlenecks, use of new technologies and its key failings. It lays bare the true picture of a justice system that, with some brilliant exceptions, is creaking under its own weight at the cost of citizen and under-trials, writes RAMESH MENON.
As far as justice delivery goes, Maharashtra is India’s best-performing state, according to the latest India Justice Report, 2020. This report is annually brought out by Tata Trusts and is India’s only ranking of states on delivery of justice.
The other states in the top five are Tamil Nadu, Telangana, Punjab and Kerala.
Among the 18 major states, the worst in terms of justice-delivery are Karnataka, Uttarakhand, Madhya Pradesh, West Bengal and Uttar Pradesh.
Among the seven small states that have a population of less than a crore, the best-performing states were Tripura followed by Sikkim and Himachal Pradesh.
The Centre for Social Justice, Common Cause, Commonwealth Human Rights Initiative, DAKSH, TISS-Prayas, Vidhi Centre for Legal Policy and How India Lives collaborated on this report.
The truth about justice systems and delivery is stark
With the exception of Chandigarh, no single High Court in states or Union Territories had a full complement of judges. One in every three posts for High Court judges lay vacant, and in the subordinate courts, one in every four.
Among the 27 states and Union Territories, there is just one subordinate court judge for over 50,000 people!
Two-thirds of prisoners are yet to be convicted.
Even the best-performing states have not been able to score more than 60 percent in the assessment of their capacity across police, judiciary, prisons and legal aid.
Only 29 percent of India’s judges are women.
India has one judge per 50,000 citizens as against the recommended number of one per 20,000.
For a population of 1,00,000, there are just 156 police personnel.
Tamil Nadu is among the top performers in the ranking of judiciary among large and mid-sized states.
Sikkim retains the first rank among small states.
Chhattisgarh reduced its vacancies for High Court judges. Interestingly, it has less than 4 percent of pending cases for over five years in subordinate courts.
Jharkhand has also reduced its High Court vacancies and improved its clearance rate of court cases and number of pending cases.
West Bengal continues to have the lowest national spend on the judiciary, an increase in vacancies of High Court judges, and had the largest number of cases pending for over a five-year period in subordinate courts as well as a declining number of cases were cleared by both the High Court and subordinate courts.
Odisha did not fare too well as it cleared fewer cases, vacancies of judges in the High Court increased and less was spent on judiciary.
Over the last two years, the total cases pending have mounted by over 10 percent in High Courts (44.25 lakh) and 5 percent (2.97 crore) in subordinate courts.
Average case clearance rate was higher in subordinate courts at 93%. (In the High Courts, it was 88.5%). Only four High Courts cleared 100% cases.
As of July 2020, six states and Union Territories had one in four cases pending for more than five years in a lower court.
At 70% Andhra Pradesh registers the largest vacancy amongst High Court judges.
Uttarakhand is the only state with more than one judge for 50,000 people.
In Bihar, West Bengal, Telangana, Uttar Pradesh, Andaman and Nicobar Islands, Puducherry, Daman and Diu and Dadra and Nagar Haveli there is only one judge for over 1,00,000 people.
Lakshadweep, with just under 30,000 people per judge has the lowest judge-to-population ratio.
Only six states have just one judge for more than 10,00,000 people.
With one judge for every two-lakh people, Sikkim has the best judge to population ratio.
On average, one in three judges in the High Court were missing and one in four among subordinate judges.
In fact, in the two years between 2016-17 and 2018-19, vacancies increased in 10 High Courts and 15 subordinate courts. Haryana, Madhya Pradesh, Manipur, Mizoram, Tripura, Jharkhand, Delhi, Bihar, Uttar Pradesh, Puducherry and Meghalaya, have over 25 percent vacancies.
CASE CLEARANCE RATESFALLING IN 16 STATES AND UTs
Between 2018-19, the general case clearance rates (the rate at which a court disposes pending cases over a year) fell in higher and subordinate courts.
Nationally, the average case clearance rate is higher in subordinate courts (93 percent) than in High Courts (88.5 percent).
To ensure that legal assistance reaches the remotest parts, NALSA’s 2011 Regulations require a legal clinic be set up in all villages or that there be at least one for a reasonable cluster of villages. In 2020, there were 14,159 clinics for India’s nearly 600,000 villages. Nationally, this averages out to 42 villages per clinic. The figure has stayed the same since 2017.
Nationally, 16 states and Union Territories including Telangana, Uttar Pradesh, Delhi and Rajasthan, showed falling case clearance rates in 2018-19, while the high courts of Jharkhand, Tamil Nadu, Puducherry and Andhra Pradesh managed to clear only 38% in 2018-19 and registered the biggest decrease nationally when compared to 73% cases cleared in 2016-17.
At the subordinate court level, only 12 states and Union Territories, including Chhattisgarh, Arunachal Pradesh, Lakshadweep and Gujarat, managed to clear all cases in 2018-19. Odisha cleared only 65% of its cases in 2018-19, which is a big decrease from 106% in 2016-17.
NATIONALLY, CASES REMAIN PENDING FOR TWO YEARS OR MORE
In subordinate courts, pendency, or the time it takes for a case to go from inception to disposal, is three years on average.
Between 2018 and 2020, the subordinate courts in 28 states and Union Territories managed to reduce the share of pending cases for more than five years. Among the large and mid-sized states, only West Bengal and Madhya Pradesh bucked this trend. In these two states, pending cases in subordinate courts increased by over 14 percent and cases that have spent over five years in court grew by 37 percent.
As of July 2020, six states and Union Territories had one in four cases pending for more than five years in a lower court. At 37%, West Bengal and Bihar have the largest share of cases pending for 5+ years.
Human resources are the backbone on which the pillars of the justice system rest. But it is one area that needs immediate attention.
Among large and mid-sized states, Maharashtra emerged as the best state in terms of human resources for the justice system. Among the smaller states, Himachal Pradesh was the best. Uttarakhand has the least vacancies, averaging at 6% amongst 18 large and mid-sized states.
Way back in 1987, the Law Commission has in its 120th report on Manpower Planning in the Judiciary: A Blueprint, had recommended a judge-to-population ratio of one judge for every 20,000 people. The report says it is one judge for over 50,000 people.
The national average of vacancies among judges in the High Court was as high as 38%.
Vacancies in the Subordinate Courts stood at 22%. The highest number was in Meghalaya, 60%.
Vacancies among the prison staff was 31%.
Prison correction staff vacancies were at 42% and medical staff vacancies were at 41%.
Vacancies among the police were 20%.
Bihar, Jharkhand, Meghalaya, Puducherry, Delhi, and Uttar Pradesh all had high judicial vacancies of over 30 percent.
Maharashtra, Andhra Pradesh, Himachal Pradesh and West Bengal had less than 10 percent.
At the level of subordinate courts, five of the 18 states (Madhya Pradesh, Haryana, Uttar Pradesh, Jharkhand, and Bihar) had vacancies of above 25 percent.
In 2020, approximately one out of five constable posts were vacant nationally. Telangana and West Bengal have the highest vacancy at 40 percent each. Nagaland hired 16% over sanctioned numbers.
In 2018-19, except for Tamil Nadu and Kerala all 18 Large and Mid-sized states, High Courts had vacancy level equal to or above twenty-five percent. That is one in every four sanctioned positions was left unfilled.
Vacancies in Andhra Pradesh stood at 70 percent. Among smaller states, only Sikkim fared better with vacancies standing at just below nine percent.
MISSING PRISON STAFF
Nationally, over the last three years, the average vacancy levels across all prison staff remained at a little over 30% but ranged from 29% among cadre staff to 42% among correctional staff. Significantly, the highest vacancies are amongst medical staff (41%) and correctional staff. To fight recidivism and inculcating prisoners’ return to normal life, a strong correctional system is imperative. But this is the weakest arm of government!
Among the 18 large and mid-sized states, Maharashtra and Odisha were the only states with overall cadre staff vacancies levels less than 10%. They had above 25 percent vacancies of cadre staff, with Jharkhand (63.3 percent), Sikkim (56.2 percent) and Uttar Pradesh (52.5 percent) the worst off. As many as 21 of 34 states and Union Territories had prisoner officer vacancies at over 30 percent. At 75.3% cent, Uttarakhand had the highest followed by Chhattisgarh at 67.6% and Bihar at 66.1%. Only Daman & Diu had no vacancies.
In subordinate courts, the pendency of cases is three years on average. Between 2018 and 2020, the subordinate courts in 28 states and Union Territories reduced the share of pending cases for more than five years. Among the large and mid-sized states, only West Bengal and Madhya Pradesh increased the pending cases in their subordinate courts by over 14 percent, and cases that have spent over five years in court grew by 37 percent.
Against the sanctioned number—itself inadequate in many cases—there were vacancies in positions of medical officers, medical staff and correctional staff.
Twelve states and Union Territories had vacancies of more than or equal to 50% of medical officers.
Uttarakhand reported no medical officers at all against the 10 sanctioned positions.
On the other hand, Punjab and Arunachal Pradesh reported 34 percent and 50 percent more medical officers than sanctioned capacity
According to the Model Prison Manual, 2016, to satisfy the policy aspiration that prisons become correctional rather than custodial institutions, prison systems are required to have specialised correctional staff such as welfare officers, psychologists, lawyers, counsellors and social workers.
The national average stands at one probation and welfare officer per 1,617 prisoners and one psychologist or psychiatrist for every 16,503 prisoners. At the state level, this goes up to 50,649.
As many as nine states and Union Territories including Andhra Pradesh and Sikkim have not sanctioned any of these posts.
For every 1,00,000 people, there are just 156 police personnel. There was a shortfall of police officers in all states except Sikkim.
The population-police ratio ranges from 1,301 in Nagaland to 76 in Bihar. Nagaland alone exceeded its sanctioned strength. Telangana and West Bengal, with vacancies of 40% each had the highest shortfall.
By comparison, the police-people ratios in BRICS countries such as Russia and South Africa is two to three times higher although their population is far lower.
As of January 2020, about 1 in 3 police posts are vacant nationally. Bihar and Madhya Pradesh with 1 out of every 2 officer posts unfilled have the most vacancies. At the other end of the spectrum is Sikkim with 22 percent more officers than the sanctioned strength.
In more than half of states, officer vacancies have increased significantly.
Vacancies jumped the most over three years in Madhya Pradesh (19% to 49%), Jammu and Kashmir (14% to 34%) and Arunachal Pradesh (18% to 33%).
In 2020, approximately one out of five constable posts were vacant nationally. Telangana and West Bengal have the highest vacancy at 40 percent each. Nagaland hired 16% over sanctioned numbers.
POLICE STATIONS SERVE RURAL AREAS UNEVENLY
In 1981, the National Police Commission suggested the average area covered per rural police station should be 150 sq. km. Although four decades old, it is the only available benchmark. The range amongst large and mid-sized states varies.
The area covered by a rural police station in Rajasthan (695 sq. km) was nearly 35 times its urban counterpart (20 sq. km) while in Tamil Nadu this was twice (101 sq. km) the coverage of urban police stations (39 sq. km). Kerala was the only state that now has urban police stations serving an area marginally larger (82 sq. km) area than rural ones (75 sq. km).
Is diversity important? It certainly is, as it affirms the democratic idea of inclusiveness. But look at our judiciary and legal systems how poor they fare on this parameter.
Uttarakhand is the only state with more than one judge for 50,000 people and at 70% Andhra Pradesh registers the largest vacancy amongst High Court judges.
As far as diversity goes, Karnataka is the best and Uttar Pradesh is the worst among India’s 18 large and mid-sized states.
Mizoram was the best among small states.
In December 2020 the Attorney General of India told the Supreme Court that there needs to be a greater representation of women at all levels of the judiciary. This was important if the goal of achieving the reservation target of 50 percent for women has to be achieved.
WOMEN JUDGES IN HIGH COURTS
It is clear that this is not as easy as the representation of women in the judiciary is pretty low in the states. Look at the percentage of women in India’s High Courts:
Andhra Pradesh: 19%
At subordinate court levels, the percentage of women judges is better:
Andhra Pradesh: 44%
As far as when among the prison staff goes, the percentages leave a lot to be desired:
The national average of women in the police is just 10 percent. Only eight states have averaged more than 10 percent. In Bihar, it is just 25 percent, Himachal Pradesh, 19 percent, and Jammu and Kashmir it is as low as 4 percent.
Most of the women are however in the lower rungs and not officers. Only seven states had more than 10 percent women officers. At the top was Tamil Nadu with 24.8 percent.
Over the last three years, almost all states showed their inclination to hire more of them with only Haryana, Mizoram and Goa bucking this trend. Between 2015 and 2019, Bihar showed the most intention to increase women’s share in the police (from 7% to 25%), followed by Himachal Pradesh (from 12% to 19%) and Gujarat (from 4% to 12%).
WHERE ARE THE SC, ST, OBC OFFICERS?
Karnataka had a larger number of women prison staff and was the only state to have met and exceeded its SC, ST and OBC quotas for police officers and constables.
Nationally, the share of women amongst empanelled lawyers, for instance, has remained constant at 18 percent. Only in Meghalaya and Nagaland were more than 50 percent, women, on the panel of lawyers. The share of women among the Para-Legal Volunteers Scheme has stagnated at about 35 percent.
The National Legal Service Authority introduced the Para Legal Volunteers Scheme in 2009 to impart legal training to select volunteers from different walks of life. Goa had the highest share while Meghalaya had the lowest with 1 out of every 5 para-legal volunteers being a woman.
Barely 1.5 crore people got legal aid in the last 25 years, though 80% of the population is entitled to it.
Maharashtra topped the chart of legal aid services among the larger states. Bihar and Jharkhand had improved the use of NALSA funds and its contribution to legal aid. Uttar Pradesh was the only state to nearly utilise their NALSA fund fully.
13 States and Union Territories have less than 50 paralegals for every District Legal Services Authority.
Since 2009, paralegal volunteers, who are embedded in local communities, have been their vital link with legal services. Ideally, every District Legal Services Authority or DLSA should have 50 active paralegals. This means that in 669 DLSAs, there must be around 33,450 paralegals. In 2019, the count at 69,290 stood at more than double. In 2020, the numbers dwindled by 36 %. Yet, it still stands at just over 51,000 or nearly 53% over the suggested numbers.
However, their presence across states, Union Territories and districts is uneven. Nagaland, Jammu and Kashmir, Assam, Chandigarh, Dadra and Nagar Haveli, Daman and Diu, Goa, Himachal Pradesh, Meghalaya, Mizoram, Rajasthan, Sikkim and Uttar Pradesh have less than the required numbers.
Women account for only 18% of Legal Aid Authorities’ empanelled lawyers.
At about 35%, the share of women paralegals nationally has remained steady. A closer look sees drops in women’s share in Chhattisgarh, Dadra and Nagar Haveli, Daman and Diu, Delhi, Himachal Pradesh, Jharkhand, Meghalaya, Mizoram, Rajasthan, Sikkim, Tamil Nadu, Telangana, Tripura, Uttar Pradesh and West Bengal.
Daman and Diu have registered the largest drop from 67.8% in 2017 to no women paralegals in 2020. Chandigarh, Goa, Maharashtra and Odisha have seen a significant rise in the share of women though. At 73%, Goa has the highest share of female paralegals.
Legal aid authorities empanel 56,114 lawyers across the country. Nationally, on average, women continue to account for around 18%.
One legal clinic per 42 villages, but there should be one in every village.
To ensure that legal assistance reaches the remotest parts, the NALSA 2011 Regulations require a legal clinic be set up in all villages or that there be at least one for a reasonable cluster of villages. In 2020, there were 14,159 clinics for India’s nearly 600,000 villages. Nationally, this averages out to 42 villages per clinic. The figure has stayed the same since 2017.
At present, only Rajasthan, Kerala, Puducherry and Tripura have provisions for legal service clinics to cover, on average, less than 10 villages.
Every jail too must have a legal services clinic. It is a standard operating procedure.
In March 2020, Gujarat has the most clinics—49 across 30 prisons—while Punjab has 26 clinics for its 24 prisons. Among small states, Arunachal Pradesh and Assam had more clinics than the number of prisons while in Meghalaya, Sikkim, and Goa each prison had a legal services clinic.
PRISONS IN A SAD STATE
Two-thirds of India’s prisoners have not been convicted so far.
In 2019, the convict prison population grew more than the undertrial prison population.
As of December 2019, the nationwide prison occupancy rate stood at 119% with prisons in Delhi overcrowded by as much as 75% while those in Uttar Pradesh by nearly 70%.
The most overcrowded prisons were Central (124%) and District jails (130%).
There is little movement toward correction and rehabilitation. Overcrowding coupled with staff shortages at all levels, low salaries, poor training, long hours, characterise prison administrations across states.
Much of the overcrowding continues to be because of the huge number of undertrials in custody awaiting investigation, inquiry, or trial. They constitute nearly 70% of all prison inmates.
In 35 States and Union Territories, the share of undertrial inmates was above 50 percent of the prison population.
Over five years, the share of undertrial prisoners shows an increasing trend in 23 states and Union Territories.
For every convict, India has two undertrials in its jails.
The lockdown hurt prisoners’ rights due to delays and lack of access to lawyers and courts. Video-conferencing was only a partial remedy.
16 states and Union Territories report that 90% of their jails have video-conferencing facilities. Five of the large and mid-sized states had less than 50% of their jails equipped with video-conferencing facilities; Kerala (42%); Rajasthan (38%); West Bengal (32%); Karnataka (31%); and Tamil Nadu (9%). Nagaland, Mizoram and Sikkim’s jails had none equipped for video-conferencing.
ONE-THIRD OF PRISON POSITIONS ARE VACANT
Nationally, in 2019, vacancies averaged from 29% (cadre staff) to 42% (correctional staff).
At the officer level, half the states have about one in three positions vacant.
Vacancies range from 75% in Uttarakhand to less than 1% in Telangana while cadre staff vacancies stand at 29%.
Amongst states, vacancies range from 64% in Jharkhand to none in Nagaland.
The Model Prison Manual, 2016, has suggested one correctional officer for every 200 prisoners, and one psychologist for every 500.
Overcrowding coupled with high vacancy levels inevitably result in inmates being crowded together—young and first-time offenders with repeat offenders—and locked up in small spaces despite the availability of vacant barracks; b) minimal welfare initiatives; and c) compromised visiting hours.
NEED FOR BETTER HEALTHCARE FOR INMATES
With COVID-19 in full swing, the risk to inmates and staff has grown manifold.
The number of deaths per 1,00,000 prison population in 2001 was 311.8, which increased to 382.2 in 2016.
In 2019, it is 370.87. The prevalence of HIV, sexually transmitted infections, Hepatitis B and C, and tuberculosis in prison populations is two to 10 times higher than the general population.
The rate of COVID-19 infections is not fully known.
In Dec 2020, over 18,000 inmates and staff had been affected.
TECHNOLOGY: LONG WAY TO GO
The pandemic has highlighted the need for speedier incorporation of technology into the justice system.
Technology will undoubtedly grease the wheels of justice delivery. The COVID-19 pandemic underlined the importance of using technology in the courts. However, the use of this technology without rigorous oversight, monitoring and evaluation continue to throw up grave doubts about its impact on the right of the accused to a fair trial.
Only 60% of jails are now equipped with video conferencing facilities.
Only Punjab and Himachal Pradesh’s state citizen portals scored 90% in terms of accessibility of services and availability of state language.
As of 2019, India’s 1,350 jails held 4,78,600 inmates. Overcrowding stood at 119%, an increase of 10.5% over 2016. 69% of this population are people awaiting completion of investigation or trial.
In 2008, section 167(2)(b) of the Code of Criminal Procedure, 1973, was amended to introduce video-conferencing as an alternative method of producing the accused in courts.
Only 10 small states and UTs—Arunachal Pradesh, Assam, Chandigarh, Dadra and Nagar Haveli, Delhi Goa, Haryana, Himachal Pradesh, Puducherry and Uttarakhand—have these facilities in all jails.
Among large and mid-sized states, only Haryana and Uttarakhand managed to equip all jails with video-conferencing facilities. No jail in Daman and Diu, Lakshadweep, Mizoram and Sikkim had video conferencing facilities.
In 2009, the central government launched the Crime and Criminal Tracking Network System for “creating a comprehensive and integrated system for enhancing the efficiency and effectiveness of policing through adopting of the principle of e-Governance”.
One segment on this portal provides for online services and information at the click of a button through citizen’s portals. Each state portal is expected to have information garnered from every police station.
Uttarakhand is the only state with more than one judge for 50,000 people. At 70% Andhra Pradesh registers the largest vacancy amongst High Court judges. In Bihar, West Bengal, Telangana, Uttar Pradesh, Andaman and Nicobar Islands, Puducherry, Daman and Diu and Dadra and Nagar Haveli there is only one judge for over 1,00,000 people.
According to data by the Ministry of Home Affairs (July 2019), the government is expected to link up 14,000 of India’s 15,000 police stations to this system. As of 2019, the target had been largely met except for 958 police stations.
State citizen portals are expected to provide 9 services—filing online complaints; obtaining the status of that complaint; obtaining copies of FIRs; viewing details of arrested persons/wanted criminals; viewing details of missing/kidnapped persons, unidentified dead bodies; viewing details of stolen/recovered vehicles, arms, stolen property; requests for issue/renewal of NOCs; and verification requests for employment, passport and so on. The portal also allows standard forms to be downloaded.
Only Punjab and Himachal Pradesh scored 90%. This was followed closely by Chhattisgarh (88%), Maharashtra (88%) and Andhra Pradesh (86%). Bihar is the only state without a portal.
Users face numerous problems with accessibility to these services. A number of portals did not work despite repeated attempts over three months to access them even on the specific browser mentioned on the portals. Among them are Mizoram, Rajasthan, Lakshadweep, Uttarakhand, Arunachal Pradesh, Sikkim and Tripura.
Most sites were available in English or Hindi, but not necessarily in the state language. The Delhi portal, for instance, was available only in English while in Jharkhand and Punjab, only certain sections of the site, or one service, was in Hindi or Gurmukhi.
For Jammu and Kashmir, there was no ready option to translate the page and for access, the site requested the user to download the Urdu script.
With these gaps, the citizen portals fell short of their objective of enabling easy access to select policing services.
The legal aid set-up became an integral part of the E-courts project with the launch of Phase II in 2014. The offices of the DLSA and Taluka Legal Services Committee are required to work in tandem with the courts to hold Lok Adalats, the listing of cases in Lok-Adalats, cause lists, proceedings, and orders which require offices to be integrated with rest of the court’s digital infrastructure.
As of 2020, the DLSAs in 22 states and UTs, including Tamil Nadu, Uttar Pradesh, Arunachal Pradesh, Goa and Delhi are not linked to the e-courts system. Linking elsewhere is at best partial.
Among large and mid-sized states, only Chhattisgarh shows 87% of its 23 DLSAs as linked to the e-courts system, followed by Madhya Pradesh (28%) and Haryana (9%). Among the small states, only Sikkim reports that all four of its DLSAs are linked.
Justice Madan B Lokur wrote in the foreword that some existing antiquated laws and practices have to be junked to change the Indian justice system. The Prisons Act, 1984, and the Prisoners Act, 1900, are cases in point. The justice system, he said, was short on good quality infrastructure which would improve the work culture. Prisons should become correctional facilities and this needs trained personnel who understand the ethos of rehabilitation.
Video-conferencing facilities are rarely used by empanelled lawyers to appear for cases. Between 2019 and 2020, panel lawyers in only 14 states utilised available video conferencing facilities to appear for cases, the most instances being recorded in Madhya Pradesh (435). This was followed by Jammu and Kashmir (57), Punjab (40) and Jharkhand (39).
In the foreword to this exhaustive report, Justice Madan B Lokur wrote that to bring in change, some existing antiquated laws and practices have to be junked. The Prisons Act, 1984, and the Prisoners Act, 1900, are cases in point. Prisons should become correctional facilities and this needs trained personnel who understand the ethos of rehabilitation.
“We also need a cadre of well-trained magistrates who will continue to uphold the maxim, ‘bail not jail’ as the norm,” he wrote.
The judiciary, he said, needs to urgently improve its deployment of technology like video conferencing to ensure access to justice.
Pending cases, he said, had spiralled out of control. There were 35.34 million cases pending in district courts and another 4.75 million others in High Courts.
Justice Lokur underlined that the 13th Finance Commission allocated Rs.5,000 crore to the judiciary but only 20 percent was utilised over a five-year period.
The justice system, he said, was short on good quality infrastructure which would improve the work culture.
(Ramesh Menon is an author of six books, has made documentary films on social issues and the environment, is an educator and the Editor of The Leaflet.)