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UNCLAS SECTION 01 OF 04 MUMBAI 000431 
 
SENSITIVE 
SIPDIS 
 
PLEASE PASS TO GTIP AND DRL 
 
E.O. 12958: N/A 
TAGS: PHUM IN KDEM PGOV KLIG
SUBJECT: INDIA'S OVERLOADED JUDICIAL SYSTEM:  CAN MAHARASHTRA 
IMPLEMENT REFORMS? 
 
REF: A. MUMBAI 316 
     ¶B. MUMBAI 169 
 
MUMBAI 00000431  001.2 OF 004 
 
 
¶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). 
 
 
 
MUMBAI 00000431  002.2 OF 004 
 
 
 
¶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 
 
MUMBAI 00000431  003.2 OF 004 
 
 
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 
 
MUMBAI 00000431  004.2 OF 004 
 
 
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 
 
-------- 
 
 
 
¶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