INDIA'S OVERLOADED JUDICIAL SYSTEM: CAN MAHARASHTRA

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SUBJECT: INDIA'S OVERLOADED JUDICIAL SYSTEM: CAN MAHARASHTRA
IMPLEMENT REFORMS?

REF: A. MUMBAI 316

B. MUMBAI 169

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1. Summary. The state of Maharashtra has the biggest backlog
of criminal cases in India, with over one million cases winding
through the courts. Like other Indian states, Maharashtra's
judiciary suffers from a lack of resources, a shortage of
judges, and only the most basic case management systems.
Moreover, with bail amounts determined by legislation, many
accused are not able to afford bail, resulting in overcrowded
jails. Since most cases take a decade or more to come to
conclusion, many of these prisoners can spend more time in jail
waiting for their trials than their sentence, if convicted,
would require. Recently, the Indian Prime Minister and the
country's Supreme Court Chief Justice have declared a "war" on
the case backlog. Maharashtra has introduced some innovations
such as fast track courts, specialized courts to build
expertise, and improving court docket procedures. However,
legal experts and judges remain skeptical that these methods
will work in the absence of more judges and more efficient court
procedures. End Summary.



PRIME MINISTER CALLS FOR "WAR" ON JUDICIAL PROBLEMS




2. (U) Speaking at a joint conference of Chief Ministers and
Chief Justices of the Supreme and High Courts on August 16,
Prime Minister Manmohan Singh called for a "war" on the
country's judicial backlog, currently at over 30 million pending
court cases. The PM acknowledged that many "under-trials" --
those who have been arrested but have not been granted, or
cannot afford, bail and must wait out their trial in jail --
have been incarcerated longer than the maximum sentences for
their crimes, had they been convicted. The Chief Justice of
India, K.G. Balakrishnan, called the conference "to devise ways
and means to expedite disposal of cases and to stream-line and
improve the justice delivery system." Though the growing
backlog has received much attention in the past few years, the
situation has only worsened: in 2008, Balakrishnan reported
that 48,000 cases were pending in the Supreme Court and 3.8
million cases were pending in High Courts throughout the
country; in 2009 the Supreme Court backlog grew to more than
52,000 cases, with 4 million cases pending at the High Court
level and 27 million cases pending in trial courts. (Note: In
contrast to the U.S Supreme Court, the Indian Supreme Court
cannot choose the cases it hears. End note.)




3. (U) According to a recent survey by India Today,
Maharashtra has the largest backlog among all Indian states,
with 1,255,881 cases pending, followed by the states of Gujarat
and Madhya Pradesh. (Note: Maharashtra also has the second
highest population, so other states may have proportionally
higher backlogs. End Note.) The Times of India reported in
June that pending cases at the magistrate level, where criminal
trials are held, increased from 496,000 in 2007 to 607,000 cases
in 2008. The backlog grew despite efficiency increases by the
courts, which disposed of 80,000 more cases in 2008 than the
year before, with no increase in judicial resources.
Reportedly, approximately 27 percent of the cases are more than
five years old.

SEVERE SHORTAGE OF JUDGES PRIME FACTOR CAUSING DELAYS




4. (U) Experts agree that the extreme case backlog is
primarily the result of a chronic shortage of judges, with both
unfilled vacancies and a shortage of judgeships compounding the
problem. In 2008, Balakrishnan noted that in addition to
filling existing vacancies, India needs to create at least 5,000
more courts, and appoint 1,539 more High Court judges and 18,479
subordinate court judges to clear the backlog of cases.
Although exact counts differ, India has a judge-to-population
ratio of between 10.5 and 14 judges per million population.
(Note: For comparison, the U.S. has 98 judges per million
people, Brazil 77 per million, and Bangladesh 12 per million.
End Note.) According to a Times of India report in January
2009, the High Courts (the first level of appeal) had only 635
of the approved 886 judicial seats filled, a vacancy rate of 27
percent. At the trial level, 3,129 out of 16,685 judicial seats
were vacant (18.7 percent).



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5. (SBU) Attorneys told Congenoff that low salaries are the
biggest impediment to attracting more judges and filling
national vacancies. In an effort to address the pay gap, a
national panel established in 2008 to determine pay guidelines
recommended a ten-fold increase in pay. However, the Parliament
approved only a three-fold increase, raising the salary for high
court judges from USD 536 per month to USD 1,650 per month and a
and lower courts. (Note: Judges also receive housing and other
benefits as part of their compensation package. End note.)
Several attorneys told Congenoff that the salaries for judges
are still so low that the courts cannot find qualified attorneys
to fill the vacant seats -- an attorney in private practice can
earn in one day what a judge now makes in a week, according to
noted criminal attorney Majeed Memon.



INDIA'S POOR HIT HARDEST BY BACKLOGS




6. (SBU) As in many other nations, the poorest have the most
difficult time asserting their legal rights and ensuring speedy
justice. Civil rights attorney Yogesh Kamdar and Memon both
noted that the Indian law sets one amount for bail for specific
crimes, unlike the U.S. system which gives courts discretion to
set bail according to the financial means of the accused. Memon
lamented that in India, "liberty has one price, regardless of
who you are," with the result that the wealthy can easily afford
bail but the destitute cannot. According to Memon, many
attorneys and NGOs are fighting for reforms to allow the courts
to evaluate the ability of the accused to pay bail when setting
the amount. (Note: India does not have bail bondsmen as in the
U.S. End Note.) Moreover, the salary for legal aid attorneys
is so small -- approximately USD 20 for handling an entire case
- that few attorneys provide legal aid services. Despite a
right to an attorney in the Indian legal system, many defendants
do not have one. Memon stressed that due to illiteracy and lack
of education, the poor do not know their legal rights. Further,
he noted, many families are so poor that they do not fight for
freedom for incarcerated family members because they know that
at least in jail the person will be fed.




7. (SBU) With most crimes, the accused is entitled to be
released on bail pending the trial, but those who can't afford
bail often languish in prison longer than their sentences.
According to Vikas Kadam, a member of the Child Welfare
Committee for Mumbai Suburbs and a social worker with the Tata
Institute for Social Science who works with inmates awaiting
trial, most of those charged with petty crimes cannot afford
bail, so they languish in the jails awaiting trial. Memon told
Congenoff that many who cannot afford a good attorney wait 12 to
15 years for their trials, even in cases where the crime is
punishable by only seven to ten years imprisonment. For petty
crimes, where the maximum penalty is only six months to a year,
many spend three years or more awaiting trial, he said. A
recent public interest litigation before the Mumbai High Court
highlighted the case of an accused who had been in jail for 13
years awaiting trial for a crime with a maximum sentence of 10
years. The court ordered the government of Maharashtra to
identify how many such defendants are in Maharashtra's jails,
but the GOM has yet to respond.



JAIL CONDITIONS INCENTIVE FOR GUILTY PLEAS




8. (SBU) The backlog in the courts has often led many innocent
defendants to plead guilty to obtain their release from jail
quicker, according to Kadam. He added that severe overcrowding
in the jails and deplorable conditions also motivate the accused
to plead guilty, in hopes of being sentenced to time already
served, to escape the conditions of their confinement. Kadam
noted that the Mumbai Central Jail is built for a capacity of
800 prisoners, but currently holds over 2500 inmates, 95 percent
of whom are people awaiting trials, many for petty crimes. In
June, the Comptroller and Auditor General's Report found jails
in Mumbai and Thane were overcrowded from between 157 to 402
percent of authorized capacity and criticized the state for
failing to utilize USD 26 million allocated for prison
modernization over the past seven years. Chief Justice
Balakrishnan, acknowledging that nearly 170,000 under-trials

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languish in jails across India for petty offences, announced
recently that if the accused had served more than half the
sentence likely to be awarded for their crime, they could be
"immediately released on personal bond." To date, this new
policy has not been implemented in Mumbai.



MAHARASHTRA COURTS WORKING TO SOLVE BACKLOG -- JAILHOUSE
HEARINGS DISPOSE OF CASES




9. (SBU) The courts in Maharashtra, as elsewhere in India, are
trying various solutions to decrease the backlog in cases, from
increasing the days or hours that a court is in session, to
instituting specialized courts to address specific cases more
expeditiously. Kadam reported that in Mumbai, trial court
judges hold court in the jail for half a day two Saturdays a
month for petty crime cases. Despite the best intentions,
though, Kadam called the process a "miscarriage of justice"
because many under-trials choose to plead guilty to charges to
avoid lengthy waits for a trial date, regardless of their guilt
or the state's evidence against them, then carry the stigma of
being convicted criminals.



SPECIALIZED COURTS CREATED TO EXPEDITE CASES




10. (SBU) One solution to the backlog recommended by the
Judicial Conference is the institution of specialized courts to
enable judges to develop expertise in specific matters to more
expeditiously resolve those cases. Mumbai has had specialized
Family Courts since 1989, and recently established a specialized
trafficking court, where a single judge hears all trafficking
cases from across Mumbai, increasing the likelihood of retaining
repeat-offenders behind bars and decreasing the overall load on
the courts (See Ref A). Additional specialized courts are being
considered, but as yet have not been established, such as a
specialized court to handle the burgeoning load of fraudulent
check cases.




11. (U) In addition, "fast track courts" have been initiated to
expedite the resolution of certain high profile cases. The most
notable fast track court case is that of accused November 2008
terrorist Ajmal Kasab which commenced on April 20, 2009, after a
short delay caused by difficulties in finding him defense
counsel (see ref B). The 2003 Mumbai bomb blasts cases were
also fast tracked and obtained convictions earlier this year --
a quick conviction compared to the 1993 serial bombing cases
that took 14 years to conclude. In May, the Supreme Court
directed that fast track trials be instituted in the
investigation and prosecution of eight cases arising out of the
2002 Gujarat riots. The National Commission for Women (NCW) and
Krishna Tirath, Minister of State for Women and Child Welfare
have called for fast track trials in rape cases.




12. (SBU) The Judicial Conference views the establishment of
specialized courts as one solution to the backlog. Bombay High
Court Justice Roshan Dalvi, however, expressed skepticism that
these courts would solve the underlying problems. She told
Congenoff that while the creation of the courts can be useful,
these courts are not enough to overcome the sheer volume of
casework facing the courts if no new judges are added. Dalvi,
who served on a Family Court Bench, said that even with a full
complement of seven judges and 14 marriage counselors on staff,
the court still faces a docket of 8000 cases. (Note: Judge
Dalvi is exploring ways to facilitate the speedy resolution of
cases and asked Congenoff about training offered by the U.S. on
court management systems. End Note.)



UNION LAW MINISTER PUSHES LEGAL REFORMS




13. (U) With the media decrying the huge backlog in the
nation's courts, the Union Law Minister Veerappa Moily weighed
in on September 23, with multiple proposals to diminish the

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backlog. First, the Law Minister promised 5,000 new courts
across the country, working in three shifts, to make 15,000
additional courts available to try cases. The proposal aims to
reduce the average life of cases from 15 years to one year in
just three years time. Second, the proposal includes an
unspecified "case management plan" with laptop computers for
judges in addition to manpower increases. Third, Moily proposed
changes in court procedures that would allow video depositions
of out-of-town witnesses. A fourth component of the plan is to
encourage government officials to exercise their own judgment
rather than frequently turning to the court for guidance.
(Note: U.S. Courts do not provide preliminary guidance. End
Note.) And fifth, Moily's proposal includes "gram nyayalayas"
(village courts) which were first proposed in legislation
introduced in 2007, and were scheduled be initiated by October
2009, but are not likely to be operationalized for several
years. (Note: The gram nyayalays are envisioned to become
rural village tribunals with jurisdiction over criminal cases
with sentences punishable by one year or less, or with a fine.
They will also hear certain land and water disputes. The judge
in such tribunals must have a law degree. While providing a
more convenient forum for rural litigants, the law creating the
local forum prohibits appeals beyond the sessions court level,
limiting access to full legal redress. End note.)



OBSERVERS ARE SKEPTICAL REFORM WILL HAPPEN SOON




14. (SBU) The Chief Justices at the Judicial Conference called
for amendments to the Code of Criminal Procedure to ensure that
judges conduct trials within a certain timeline by preventing
unwarranted adjournments and unnecessary delays. Judge Dalvi,
however, did not expect meaningful change from the Judicial
Conference. She remarked that the Judicial Conference is not a
forum under which any massive change in the judiciary can be
accomplished. What the system needs, she said, is a strong
minister or strong Chief Justice who will implement changes to
make the courts more efficient.



COMMENT

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15. (SBU) Comment: The present poor state of India's judicial
system significantly contributes to the nation's slow progress
in effectively prosecuting and convicting people for crimes
ranging from theft and fraud to human rights violations and
human trafficking. Moreover, a series of recent high-profile
cases of corruption in the state and central judiciary has begun
to undermine overall confidence in the judiciary, leaving some
observers to bemoan the decline of yet another public
institution. The high public acceptance of extrajudicial
killings of suspected criminals by the police as a way to avoid
expensive - and, in their minds, unnecessary - trials, is a
symptom of the declining faith in the legal system. However,
the county's rising caseload indicates that Indians do, as a
whole, depend on their judicial system to resolve many of the
important legal and political issues of the day, and have enough
faith in the system to continue to turn to it when issues arise.
Nevertheless, the extreme delays in securing justice make it
difficult to conclude trafficking cases, for instance, where
witnesses and victims leave the jurisdiction of the courts as
their lives move on. The improvement of India's judicial system
would thus have profound implications for human rights, justice,
and the rule of law in the country. Law Minister Moily's
proposed judicial reforms seek to improve the system, but unless
these proposals are backed with adequate funding and sound
implementation, they will have difficulty taking root and
effecting real change in the enforcement of the rule of law in
India. End Comment.
FOLMSBEE