“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 here, here, 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.