Reforming the Indian Judiciary from the Bottom Up

“Corruption is as old as society. Corruption has become a way of life, [an] acceptable way of life. And judges don’t drop from heaven.” 

This was former Chief Justice Ranjan Gogoi’s reply when a journalist asked him about corruption in India’s courts. Such a statement may seem extraordinary coming from a former Chief Justice, but he is not alone in holding this belief. Two other former Chief Justices have acknowledged the pervasive corruption problem facing India’s judiciary, particularly in the lower courts where most Indians interact with the judicial system. And this perception is backed up by quantitative evidence: according to Transparency International, 32% of Indians who used the courts in 2020 had paid a bribe that year, while 38% resorted to personal connections to navigate the system. 

Much of the public outrage over India’s judicial corruption has understandably been directed toward individual corrupt judges (see herehere, and here), but the problem reflects deeper systemic issues—perhaps most importantly, the massive case backlog. There are currently forty million pending court cases in the country’s District Courts and Subordinate Courts, and every year that number grows by millions more. By some estimates, it would take 400 years for the judiciary to clear the backlog at its current rate (and that’s assuming no new cases are filed in the meantime). It takes an average of 35 months to resolve a legal issue in India, the longest in the world according to one report. And many cases take much longer: over half a million cases have been pending for over twenty years.

This case backlog, and the glacial pace of Indian justice, is not only a crisis for the administration of justice but also a breeding ground for corruption. Given the extraordinary delays, those litigants who can afford to do so have strong incentives to pay bribes or use connections to get a faster verdict. (Most bribes are paid to court officials or middlemen, including lawyers, rather than directly to judges.) And, without excusing those judges who violate their oaths of office, it’s not that surprising that overworked, underpaid judges dealing with crushing caseloads would be tempted to accept these under-the-table payments. In essence, then, the extreme case backlog in the lower courts has created something of a two-track system, one for those that can pay the price to skip the line, and one for everyone else.

As the number of pending cases continues to balloon, this problem is only going to get worse. While punishing those judges (and their staff) who are caught requesting or receiving bribes—and those litigants and facilitators who offer those bribes—may be morally and legally justified, cracking down on individual wrongdoers is not enough to address the structural roots of India’s judicial corruption problem. 

What can be done? Though there are no easy solutions, India needs to adopt reforms to increase both the quantity and the quality of its lower court judges:

  • With respect to quantity, India has a shockingly low number of judges per capita. Country-wide, India has about 21 judges per million people; by comparison, the U.S. and U.K. have 107 and 50 judges per million people respectively. And there is evidence from within India that the ratio of judges to population is correlated with the extent of judicial corruption: bribes for speeding along cases are more frequent in states with larger judge-to-population ratios like West Bengal, which has an abysmal ratio of 10.45 judges per million people. The most obvious first step to address this problem would be to fill the large number of existing judicial vacancies. By some estimates, there are close to 5,000 open judicial seats that need to be filled, which is nearly a quarter of the entire lower judiciary. But despite recent assertions by some commentators, just filling existing vacancies is unlikely to be enough: there are large case backlogs in states with relatively fewer judicial vacancies, and backlogs would likely persist even if all existing judicial posts were filled. What India really needs to do is to dramatically increase the number of judgeships. A former Chief Justice suggested nearly doubling the number of lower court judges to 40,000, compared to around 24,000 today—a change that would bring India into line with the Law Commission’s 1987 recommendation that India increase its judge-to-population ratio to 50 judges per million people.
  • Such a drastic increase in the number of judges is already a tall order, but it is still probably not enough. India also needs to do more to attract high-quality candidates to fill judicial posts. The country’s court system is already struggling to find enough qualified candidates to fill existing judicial vacancies, let alone thousands of new lower-level judgeships. The problem is not a shortage of lawyers—India has plenty of lawyers. Rather, the problem is that very few lawyers choose to take and pass Judicial Services Examinations (the state-run exams that determine eligibility for a judicial appointment), and even fewer pass. For instance, only 659 candidates sat for Delhi’s 2015 exam, competing for 570 vacancies, and only fifteen passed. (Even more troublingly, two of those fifteen were the children of sitting judges who helped write the exam.) In 2019, a more respectable 14,000 candidates sat for the Haryana exam, competing for 107 vacancies—but only nine passed. And those who do pass the exams and become judges work slowly and inefficiently. India desperately needs talented, highly qualified law graduates to pursue judicial careers in the lower courts. But right now there is little incentive for them to do so: after studying for and passing the grueling examinations, successful applicants are rewarded with uncompetitive salaries, crushing workloads, and dismal prospects for advancement. (Most High Court judges are appointed directly from the Bar rather than the lower courts, so a lower court judgeship is not attractive as a stepping stone to better paid and more prestigious judicial positions.) Giving lower court judges more opportunities for advancement, along with higher salaries, would encourage bright and ambitious law graduates to apply for these vacant positions that so desperately need to be filled. Such changes would also motivate sitting judges to work faster and more efficiently. In a fairly encouraging development along these lines, the Modi government recently revived its proposal for an All-India Judicial Service (AIJS), which would set up a national infrastructure to recruit, train, and promote lower court judges in a manner similar to the prestigious and competitive Indian Civil Service (ICS), where salaries and benefits are much higher. (To give a sense of how much more attractive ICS posts are compared to judicial posts under the current system, last year over a million candidates applied to the ICS for fewer than 800 seats.)

Encouragingly, even as the case backlog continues to spiral out of control, the conversation around judicial reform seems to be gaining more momentum. Beyond the proposals discussed above, the central government and other outside commentators have suggested a number of additional solutions to the backlog, such as the increased use of technology like e-filing and virtual hearings. Whichever route reformers take, it’s imperative that they do not lose sight of the deep structural issues that contribute to judicial corruption, rather than focusing only on individual corrupt judges or a more nebulous “culture of corruption.”  Only with an eye to these more fundamental structural problems can India begin to solve the crisis of corruption that colors the experience of every person who dares to make their way through the court system.

8 thoughts on “Reforming the Indian Judiciary from the Bottom Up

  1. Thanks for this really interesting take. I’m curious as to why some of these reforms haven’t happened, especially given they were discussed as far back as 1987! You make a sound case and it doesn’t seem like there’s a political divide, so what’s causing the holdup?

    • I ask this same question, Disha! Perhaps one reason such reforms have yet to be implemented is the costs associated. I imagine that increasing the size of the judiciary, as well as the salaries, would involve significant budget allocations. Even if such reforms are nonpartisan, perhaps they would still be economically difficult to justify for many. Likewise, it may be that this issue simply does not seem like a priority for many, and has therefore not been genuinely pursued.

    • Thanks Disha and Victoria for the comments! It sort of is bewildering, isn’t it — appointing more judges seems like an obvious solution to an obvious problem. I agree with Victoria and imagine that cost has to be part of the hold-up to some extent, but I haven’t really seen that as part of the conversation. Maybe this is overly cynical, but perhaps Victoria is right and politicians really aren’t all that concerned with judicial corruption in the lower courts right now, so maybe it’s just politically easier to target individual judges rather than pursue structural reform. But I am hopeful that a step-by-step approach could help move things along; for example, adding more judges wouldn’t work well without first getting more qualified candidates, so that’s why I think reforming recruitment and the examinations could be a great first step.

  2. Thanks for the great post, Josh. I’m struck by how much more attractive the ICS is than judgeships in the lower courts, even though both require competitive examination. I think you’re right to observe that the problem is not only poor pay but a lack of opportunities for advancement. Given that raising judicial salaries is always tricky, I wonder if one way of making the post more attractive would be to offer a route to the civil service that runs through the lower courts. Alternatively, the Indian state could create more upward opportunities in the justice system for lower court judges, either in the higher courts or as prosecutors/government lawyers.

    • Having a route into the ICS through the lower courts is such a fascinating idea. While I wonder how that could work in practice (perhaps the jobs are too different?), ICS positions are so sought after that I am sure it would increase judicial recruitment. I also completely agree with your second thought. One enormous perk of joining the ICS is that you could one day become a Cabinet Secretary in the federal government or a Chief Secretary in a state government (which has powers on par with the Governor). If lower court judgeships had these kinds of prospects, I imagine it would be a lot more of a prestigious and desirable career pathway.

  3. Great post. I’m intrigued by the judicial test and what’s going on there. Is it too hard? Is it testing non-relevant things? Is that a corruption issue in and of itself? If only 9 people are passing out of 14,000 candidates, it’s hard for me to imagine that those 9 were the ONLY ones qualified to pass the test.

    • Terrific post! I was left wondering similar questions as Zachary. It amazes me that 14,000 would sit for an exam that only has 9 people passing. Do you think that part of the reason why these high standards are perpetuated is coming from sitting judicial appointments who do not want to tarnish the prestige of the position they worked so hard to obtain?

    • Thanks Zach and Katherine! I also find the exam pass rates to be one of the most mind-boggling parts of this whole story. Part of the problem seems to be that in most states, there’s a great deal of discretion in how the exams are graded and administered. Apparently in Haryana, many candidates were given incomplete exam sheets (https://timesofindia.indiatimes.com/india/why-controversy-mars-judicial-officer-selection-by-ph-hc-asks-sc/articleshow/87679516.cms), which led to general panic, disarray, and mistrust over grading.

      It’s also true that some of these cases are extreme outliers — Haryana’s exam was so bad that the Supreme Court had to step in. But in the state of Karnataka, it looks like 75 out of around 4000 candidates passed the exam, competing for 94 judicial slots (see links here: https://karnatakajudiciary.kar.nic.in/civilJudges2021.php). Not great, but certainly an improvement over 9 out of 14,000 in Haryana. And to Katherine’s point, I would also not be surprised if in states with “interview rounds,” the judges are being unduly selective in an attempt to preserve their prestige. In Karnataka, over 200 candidates qualified for the interview round, so I find it quite odd they didn’t just try to fill all 94 slots. Another reason why I think consistency in the form of some sort of national exam and recruitment program could be key to reform.

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