The Course of Justice Never Did Run Smooth

The great property theorist Harold Demsetz once said, “The court is not a market institution. If you don’t believe me, ask [Judge] Richard Posner, who’s here, how difficult it is to collect payment for a correct decision.”

Had Professor Demsetz been speaking where I’m sitting, he might have also mentioned the difficulties of collecting for a timely decision.

Imagine that your dispute is being heard before Judge Wapner, who has resolved the pre-trial disputes and heard testimony from half the witnesses. Judge Wapner retires. No judge is appointed to take his place on the bench of the People’s Court for months on end. The case languishes, unmoving, until Judge Judy is finally appointed. She sits on the bench and conducts a hearing to come up to speed on the case. She then disappears, and trial again languishes, while the Judge attends two to four months of mandatory training. It’s time again for witnesses to resume testifying.

What else could slow you down? Perhaps no stenographer has been appointed, and therefore no orders are being written. (Are you tempted to volunteer that a law school education left you with excellent dictation and typing skills, and that you’ll bring your own laptop and portable printer?) Perhaps defense counsel is busy (or ‘busy’) in another court, and has sent a junior for the sole purpose of taking an adjournment. Perhaps no prosecutor has been appointed to the court hall. Unless you, as a private pleader, can get appointed as the prosecutor, the case will not move forward until an appropriate warm body, with the authority to appear before that judge, is found and moved into place. Or, more simply, perhaps the accused did not show up that day—a warrant for his appearance is unlikely to be issued until the second or third time he no-shows on flimsy excuse. And witnesses themselves may have been transferred, moved in search of other jobs, or changed phone numbers. It’s a big country in which to find someone.

These problems mount. India’s backlog of pending court cases at all levels of the judiciary currently stands at approximately 31 million cases (over 65,000 of these are pending at the Supreme Court).  Resolution comes slowly: in 2011, it was estimated that 24% of cases had been pending for five years or longer, and 9% of cases had been pending for ten years or longer.[1]  I mainly think of these issues from the side of the prosecution, but as Amnesty notes, two-thirds of prisoners in India are awaiting trial or undergoing trial, and have not yet been convicted of any crime.  It’s also important to recognize that about 37% of pending cases are traffic cases.  Still, the number of pending criminal cases, under the penal code, has increased at an alarming rate.

Backlog of criminal cases under the Indian Penal Code (and not any other criminal laws), per the National Crime Record Bureau

Backlog of criminal cases under the Indian Penal Code (“IPC”), per the National Crime Record Bureau, Ministry of Home Affairs. Criminal cases under the IPC represent approximately 40% of all cognizable crimes annually.


Explanations for the massive backlog usually point to multiple causes:

  1. The judiciary, with fewer than 15 judges for every million citizens, is severely short-staffed (in the U.S., there are over 100 judges per million). Other resources–translators!–are also lacking.
  2. Plea bargaining, which was only introduced in 2006, can only be used in limited circumstances: if the offense is punishable with a term of less than seven years, if the victim is neither female nor a child under 14 years of age, and if the crime is does not affect the “socio-economic condition of the country.”[1] In many criminal cases, therefore, the case simply must go to trial.
  3. Efficiency isn’t a core part of the system. Trials pause as errors are corrected: if the police failed to provide the necessary documents from the case investigation to the court, this is a fixable mistake. A prosecutor may only be appointed for a few months before being transferred away. I have also heard that the overwhelming backlog results in judges trying to hear as many cases during the course of each sitting, even if only 15 minutes can be allotted to each case, so that participants feel that their cases are progressing, slowly but incrementally.  Such frequent switching during the course of a day, is itself inefficient.

In line with Professor Demsetz’s point, about the lack of incentives to motivate courts, the scheduling system is simply a nightmare. While in theory, “In every inquiry or trial, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined,” in practice adjournments are routinely granted, and cases frequently not scheduled continuously.

In my experience, it is rare for a case to be heard on consecutive days; one or two hearings a month in a case is a fairly respectable speed. Witnesses may deliver direct and cross-examination testimony on days half a year apart.  Given the uncertainty of when the next court date may be, it is quite easy for an attorney to be honestly obligated in two court halls, in two cities, at once. One must find a stand-in–often local counsel or a junior colleague, with limited delegated capabilities–or take an adjournment. In practice, adjournments seem to be possible when an attorney is unprepared, when a witness is underprepared, or when a delay could benefit a side. Defense counsel can even take adjournment after adjournment to delay his own closing argument.

The problem is thoroughly recognized; the solution, less obvious.  The Law Commission of India recommends more judges, more court staff, and more funding, as well as the creation of specialized traffic courts, raising the retirement age for judges above the current 62, and more data on the backlog, so it can be better studied. Other academics recommend instituting electronic filing, to save time locating and transferring paper files; ordaining an elite group of civil servants to serve as judges, on par with the IAS; encouraging alternative dispute resolution; permitting contingency fee arrangements, to give attorneys a stake in the prompt resolution of their clients’ cases; introducing sanctions with teeth to punish advocates who file frivolous motions to delay; and creating more specialized, fast-track courts, with tight deadlines to resolve a case.

These sound like sensible suggestions, though it’s difficult to tell what would be sufficient. I would like to add that I wish contempt of court sanctions were more available for advocates or accused who fail to show in court, and that the excuses for no-show be dramatically whittled. Given the strikes by advocates that ensued when adjournments were made slightly more difficult, I doubt that mine is a plausible solution.

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[1]  As explained here, crimes affecting the “socio-economic condition of the country” include attacks on a person based on caste or untouchability, certain violent offenses against women (among them demands for dowry; the practice of sati or widow immolation; and domestic violence, tampering with food safety, crimes relating to the military, and offenses regarding the film board. These are crimes for which plea bargaining is not possible.


Lagniappe:  I photograph property signs around town. They’re almost, though not quite, as good as the sleeping dogs.

Posted for Litigation

Posted for Litigation: When disputes involve real property, a sign on the property will state the docket number (and sometimes also the judge’s name, and litigants’ names and phone numbers). As the case status slowly changes, these updates will also be posted.




Update (June 2015): A BBC photographer received special permission to take pictures inside the Patna High Court in Bihar.

Files (BBC’s Prashant Panjiar).

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