A government with capability and foresight ought to be able to do two things at once, even as it is preoccupied with the Covid pandemic. Foresight means seeing and acting on the inevitable secondary and future effects of a crisis that is still out of control. We have seen the health system fail catastrophically, and have watched the economy groan and crumble. The court system is not far behind.

The courts have not worked with a full caseload since March 2020. I am not advocating that we open the courts in undue haste — it would be irresponsible and could lead to an immediate spike in cases. But when the courts do eventually reopen, what awaits them?

By and large, over the last year, only very urgent matters were being taken up over videoconferencing. Between India’s two waves of Covid, a brief attempt to reopen physically was made by some courts, and a dual-access hybrid system was trialled, where some could attend physically, with precautions, and others could dial in. However, the regular caseload was still not being taken up. As a result, pendency has risen precipitously across the judicial system — 10.35 per cent at the Supreme Court and, more worryingly, 20.5 per cent in the High Courts and 18.2 per cent at the district level. When the lockdown of March 2020 was declared, there were 3.68 crore cases across all levels; which have already shot up to 4.42 crore. By the time physical functioning begins, there will likely be nearly 5 crore pending cases.

Delays and inefficiencies arising from the heavy dockets in Indian courts have long been a matter of concern, and like most matters of systemic concern, they have been allowed to grow gently in the dark. What Covid has done is stall the system; for every day that normal functioning does not take place, pendency multiplies. Courts at the district level often list upwards of a hundred matters daily, of which up to a quarter are fresh filings. All the fresh matters not being filed right now will be filed on reopening, since limitation periods have been extended. The economic slump caused by the lockdowns has also exacerbated the situation because, for one, defaults on debts and deliverables are rising.

Two solutions offered by voices in the senior judiciary are — digital functioning and a procedural revamping. The first is a mirage. Experience has demonstrated that outside of the Supreme Court and certain High Courts, except for bail and other exigencies, courts are not capable of hearing large numbers of cases virtually. There is a yawning digital divide between courts, practitioners and clients in metropolitan cities and those outside. Overcoming the hurdles of decrepit infrastructure and digital illiteracy will take years. To expect this kind of change overnight across the nation is deluded techno-fetishism.

Procedural quick fixes are the easiest to accomplish and therefore attractive — change at the stroke of a pen. However, they often only serve to reclassify matters. For, example, the proposal to decriminalise cheque bouncing would certainly get rid of lakhs of cheque bouncing cases, but most would reappear as criminal complaints of cheating, or as civil recovery proceedings. Procedural shortcuts can also problematically alter the rights of parties and introduce uncertainties into the law.

The failure of the elites of the legal system has been their treatment of the pandemic as being first and foremost a question of the welfare of lawyers, and not a crisis of access to justice. The system is broken at a fundamental level and from the bottom, the subordinate courts are the primary interface of the people with the justice system. Seventy per cent of prisoners in Indian jails are undertrials, who have never been convicted, and are, therefore, innocent. Few pending cases have moved forward over the last year, and adjournments of six months or more are common. It is little wonder that many citizens have lost faith in the courts.

The only real solution is to substantially increase the strength of the judicial services by appointing more judges at the subordinate level — improvements must start from the bottom of the pyramid. This proposal is neither new nor radical. Across India, there are vacancies against even the sanctioned strengths of courts and in the worst performing states those vacancies exceed 30 per cent. Courts are sitting on a pendency bomb and it has never been more urgent to strengthen the subordinate judiciary.

District courts across the country also suffer from inadequate infrastructure and poor working conditions, which need drastic improvement, particularly if they are to meet the digital expectations raised by the higher judiciary. Strengthening the subordinate judiciary also means providing it with administrative and technical support and prospects for promotion, development and training. This is also an opportunity to correct historical inequalities. Women judges, and judges from historically-marginalised castes and classes must finally be given a fair share of seats at the table.

These appointments and improvements will require significant but absolutely necessary expenditure. The recommendations of the Fifteenth Finance Commission and the India Justice Report 2020 have raised the issue and suggested ways to earmark and deploy funds. Holding examinations and interviews and appointing more judges and staff is not a simple process and will be nearly impossible until the pandemic has been subdued. But purse strings must be loosened and necessary policy decisions must be effectuated rapidly at both Centre and state levels, if access to justice is to be meaningful in the years to come.

Sarna is an advocate and writer from New Delhi. He is a member of the Green Justice Party of India