New Delhi: India's justice system has been affected by poor budgeting, the recently released India Justice Report has concluded. Inadequate allocations, poor planning and underutilisation of funds--all these have impacted the ability of the justice system to address its capacity constraints and improve its functioning.

No state or union territory in India, except Delhi, spent even 1% of its budget on judiciary, said the report which reviewed budgets between 2011-2012 and 2015-2016. The average national spending on the judiciary in this period was 0.08% of the gross domestic product (GDP), said the report which was published by Tata Trusts, a philanthropic organisation, in collaboration with six organisations.

The study drew on figures from across the four major constituents of the justice system--police, prisons, judiciary and legal aid.

The annual per capita spend on legal aid, for which 80% of the Indian population is eligible, was only 75 paise, as per the study. The expenditure on police, prisons and legal aid varies between states. While police budgets, on average, accounted for 3-5% of state expenditure, average prison budgets across states and UTs stood at only 0.2%.

Poor budgeting has led to capacity constraints in the judicial system, according to the study. Police personnel have highlighted the absence of basic infrastructure such as vehicles, fuel, computers and stationery, as per this 2019 report on the Status of Policing in India by Common Cause. Upto 80 of the 665 district courts across the country did not have washrooms, and where they existed, only 40% were functional, as per this 2019 report by the Vidhi Centre for Legal Policy, a think-tank.

Beyond this, an affected justice system also hampers long-term economic growth, said experts. The inability of the system to deliver justice and maintain the rule of law has led to a rise in violence which had cost India an equivalent of 9% of its GDP, according to this 2018 report by the Institute for Economics and Peace, an Australian think-tank.

Foreign investment too is affected by an under-supported judiciary: While jumping up nearly 14 spots in the latest rankings, it still takes an average of nearly four years to enforce a contract, as per the Ease of Doing Business 2020, a report published by the World Bank. In 2016, it was estimated that judicial delays cost India around 0.5% of its GDP annually--Rs 50,387 crore ($7.5 billion).

Zero-sum game

Over the last 15 years, budget exercises have become a zero-sum game--an increase in spending on one sector inevitably means a decrease in spending on the other and this often results in inadequate budgetary allocations for the justice system. Such allocations, indicative of the priority accorded to different sectors, are motivated by political and economic factors.

Budget allocations are decided by finance departments, usually following mechanical practices of incremental budgeting i.e. where the current budget is decided based on the previous year with an increment. This often means that plans follow budget instead of the other way round.

Allocations are also shared between the states and the Centre. On judiciary, while the combined expenditure by the union and state governments grew by 53% between 2016-17 and 2018-19, states contributed the biggest share, around 92%, according to a report by the Centre for Budget, Governance and Analysis (CBGA) and DAKSH.

Through a five-year trend analysis, the India Justice Report highlights how most budget allocations for justice do not keep up with the overall increase in state expenditure. Budgets are necessary to supplement the justice system’s efforts to improve its capacity: For instance, data show that most states with increasing average pendency were those where the increase in judiciary budgets trailed overall state budgets.

Rajasthan saw its total budget for 2011-2012 and 2015-2016 increase by an average 20% but allocations for judiciary rose by only 8%. In the same period, Gujarat’s budget for the judicial system trailed state spending by nearly 22 percentage points, while Odisha’s exceeded it by 26 percentage points. Across the judicial system, including the police, prisons and judiciary, Punjab was the only state to see an increase in budgetary allocation higher than overall state spending.

Huge number of vacancies

Budget inadequacies affect the enhancement of capacities and the maintenance of the core competencies of the judiciary, legal aid, police and prisons, as we mentioned earlier. The most critical of these constraints is the number of vacancies in core positions across the justice system.

As of 2018, the judicial system was functioning with a lower than sanctioned number of judges, the report stated. While judicial vacancies against sanctioned posts stood at 23.25% at all tiers, the report pointed out that in 2016-17, high courts had a judge vacancy of 42% and subordinate courts of 23%.

Police vacancies run at about 22% of sanctioned numbers, according to the Bureau of Police Research and Development (BPR&D) report published in January 2017. The most acute vacancies were reported in Uttar Pradesh--at 53% for the constabulary and 63% for officers (2017).

Similarly, nearly one-third of all prison posts remain unfilled across the country. Uttarakhand and Jharkhand had the most poorly staffed jails. Uttarakhand, for instance, recorded the highest vacancies among cadre staff, at 72% (2016). As of 2019, only 79% of the district legal service authorities had full-time secretaries to manage the delivery of legal-aid.

“Inadequate allocations have adversely affected staffing,” said Asadullah, programme director at the CBGA. “A number of vacancies in different arms of the justice system are giving rise to privatisation and sub-contracting (of posts). Both union and the state governments need to take this tough call of financing the human resource cost institutionally.”

In Bihar, for example, 13.6% of the total allocation on salary by the law department in the 2019-2020 budget has been earmarked for contractual services.

But across the various arms of the judicial system, most of the expenditure goes towards the payment of salaries, leaving little for the improvement of equipment and infrastructure, financing of new initiatives and capacity building. Much of legal aid funds, for instance, is spent on payment to lawyers, while the spending on legal aid clinics and persons in custody remains limited.

The funds paradox

In nearly all states, the issue of budget inadequacy coexists with the problem of underutilisation of funds. While funds are made available by the Centre under various schemes, these are earmarked for specific expenditures. For instance, modernisation grants to states from the Ministry of Home Affairs can only be used for infrastructure, capacity building, repair and maintenance; they cannot be used for hiring the much-needed staff. Only one state, Nagaland, could fully utilise its 2016-17 grant for the modernisation of police forces.

States are often required to meet stringent financial norms and conditions for centrally sponsored schemes, such as providing a matching share for central funds. Those unable to meet these criteria face bottlenecks not only in the flow of funds but also in the use of these funds.

Poor planning and low budgets have other consequences too: Vacancies affect the ability of the system to meet diversity quotas. It also translates into a higher workload for existing staff even as new hires work with inadequate training. On average, police personnel work for 14 hours a day, while only 6.4% of the police force have been provided in-service training over the last five years, as per this 2019 Common Cause report.

But simply raising allocations to the justice sector may not deliver effective results. Capacity deficits, poor planning, bottlenecks and inflexible norms are issues that will still need to be addressed, said experts.

“We need to think of funding initiatives whose impact will be non-linear,” said Surya Prakash BS, fellow and programme director at DAKSH. “Improving the budgeting process will necessarily require a vision that lays down what the judiciary should achieve with respect to various aspects, be it staffing, technology or pendency. Such a vision needs to hold for at least five years to make meaningful progress."

(Singh is the lead researcher for the India Justice Report.)

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Niyati Singh