While there is an overwhelming consensus in policy-making circles over the need for judicial reforms, the lack of data leaves little scope for systematic study of the judicial problems, as Aparna Chandra, Assistant Professor and Research Director at the Centre for Constitutional Law, Policy and Governance of the National Law University, Delhi,pointed out in a previous article.
In the absence of data, policy makers resort to undertaking reforms “based on anecdotal evidence, and the experiences, ideologies, worldviews, and proclivities of individual policy makers”.
The focus today is largely on speedy disposal of cases, without adequate exploration of the stage at which proceedings on cases are being delayed or the reasons for the same. Incentivising the courts to dispose of cases quickly, without first addressing the issues causing these delays, compromises on “the ability of the system to deliver quality justice”.
The Rule of Law Project
To undertake this crucial first step in bringing about useful reforms in the judicial system, the Rule of Law Project (ROLP) was launched on 7 February by Daksh, a Bangalore-based NGO that works on improving accountability in political, administrative and judicial processes.
Comprised of an interdisciplinary group of social scientists, data analysts and lawyers, the ROLP aims to produce a scientifically maintainable database using publicly available information acquired from the courts, and to study the causes of judicial delay and its socio-economic effects.
So far, data has been collected from ten high courts in the country. Over the span of a year, the project aims at covering the Supreme Court, all the 24 high courts and five randomly selected district courts. The data thus collected will be made available on their website shortly.
As a part of this project, on 18 March 2015, Daksh organized a talk by Nick Robinson, post-doctoral fellow at the Harvard Law School programme on the Legal Profession.
Introductory remarks by Harish Narasappa
In his introductory remarks for this event, Harish Narasappa, the co-founder of Daksh, drew attention to the dismaying numbers of pending cases, that we see published in newspapers every few months: “3 crores in the lower courts, 45 lakhs in high courts and between 65,000 and one lakh cases pending in the Supreme Court, depending on which part of the year you look at the data.”
But there has been no analysis of what these numbers mean. What does it mean when we say there are 3 crore cases pending? How long has each case been pending? And why is it taking such a long time to decide each of these cases? These are questions pertinently raised by Narasappa.
The question over the duration of pendency – is it really taking a long time? – is not one to be ignored. “If three crore cases are pending only since three years, it would mean ours’ is a great legal system compared to many other countries across the world,” he said. “Or are these cases pending for 10-15 years?” asked Narasappa, hinting at the lack of clarity on the issue.
If someone who wants to file a case asks five lawyers how long the case might go on, it is most likely, said Harish, that no two lawyers will give the same answer. The estimates could vary from six months to five years, simply because there is not enough data available on how long a case stays in court at each stage.
Now, however, with the e-governance initiative, most courts have started publishing data on the Internet, making data collection and analysis possible. Daksh, Narasappa said, has collected data from 10 high courts on close to 3 lakh cases heard 11 lakh times altogether, in the past 6 months.
Do we really need data to bring about judicial efficiency?
Harish set the ground for Nick Robinson to begin his talk by asking a fundamental question: “Do we really need data to bring about judicial reforms?” To answer the question with an example, Robinson recalled the evolution of the Supreme Court in his own country, the United States of America, since its genesis in 1789.
In the early days, so few were the complaints lodged at Supreme Court that the judges often travelled to different states to take up cases filed in the lower courts. Since there were not many cases heard at the Supreme Court, a law was passed, making it mandatory for the court to hear all the cases it was approached with.
The Civil War and later, the process of rapid industrialization gradually widened the scope for litigation and increased the number of cases filed at the Supreme Court.
By 1860s the judges were overwhelmed with loads of new files each week, causing a delay in hearing the cases, often by over three years beyond the filing. One of the solutions proposed was to increase the number of judges from the initial 6 to 18 or 20, and split them into two or three benches. A law was passed to stop the Supreme Court judges from hearing cases filed in lower courts, in order to ensure that they were in Washington D.C full-time.
Between 1880 and 1925 a number of judicial reforms were carried out. The US Supreme court was finally given its modern form with the introduction of the Judiciary Act of 1925, which gave the court more discretionary powers so that it would not have to take up all the cases it was approached with, allowing the highest court to focus on matters it considered most important.
At around this time, Felix Frankfurter, who was then a Harvard law professor and later became a Supreme Court judge, started documenting how many cases were heard each year and how many were disposed of. This developed into the Harvard Law Review, which contains data on the cases ongoing in the court and also a commentary on case laws. Today, the SCOTUS blog also maintains this data in greater detail.
As evident in this chronology, data collection on U.S. courts began after the problem was identified and reforms were put in place to correct the flaws. “We know from experiences from around the world that big data is not actually necessary to solve problems,” Robinson said. “Other processes like internal feedback loops and power contestations can make the judiciary more manageable.”
But even if not necessary, data is certainly useful, he went on to say. It brings clarity to issues, helps in articulating the problem and in pinpointing the fundamental factors causing the problem.
However, even without looking at any data, we can identify certain reforms that are necessary. We know we need procedural reforms which bring more competent judges into the system, improve administration and prevent frivolous appeals from entering into the judicial system. Having data just allows us to back up such claims with solid evidence, said Robinson.
Reasons and remedies for inefficiency in Indian judiciary
There are a number of explanations of inefficiency in the Indian judicial system, one of which is simply a technocratic failure or a knowledge failure, according to Robinson. If everyone involved in the system develops a better understanding of the functioning of the system, many of the problems will automatically be solved. Lack of this understanding, which is partly due to insufficient data, causes enormous confusion, leading to inefficiency and wastage of time.
The second reason according to him is the paucity of resources and funds. “The problem is not so much misallocation of resources, as the lack of it,” Robinson said, at the same time pointing to the common knowledge of corruption and vested political interests in the judiciary.
Another reason, which he touched upon in slightly greater detail, is the inefficient management of courts. If fines are imposed on those lawyers who do not show up in the court and fail to carry out schedules and filings on time, the system will eventually fall into order, remedying the problem of inefficient court management. The judges understand the need for such measures, but any attempts to do so will upset the powerful BAR council and invite a lawyers’ strike.
The high number of appeals coming from the lower courts to the High Courts, and from there to the Supreme Court, is another important reason for delays in the judicial process. In a case study on the reasons for slow progress in district courts in Uttar Pradesh in 1990s, Robert Moog points out, “The data suggests that it has been a relatively small number of litigants and original filings that have occupied the courts with, at times, seemingly endless number of appearances, adjournments, applications, motions, pleadings, framing of issues, presenting the issues, formal arguments, judgment revisions, reviews or appeals." Moog documents that the rate of appeals in India is around 60 percent, while in the US, there are only around 5 percent appeals coming out of lower courts.
Imposing a fine on the losing party in case of commercial disputes, where it can be established that the case could have been resolved at an earlier stage, might help in deterring one party from relentlessly filing cases without sufficient legal grounds against another, said Robinson. The implementation of the Commercial Division of High Courts Bill can also help to quickly settle commercial disputes involving huge amounts of money, bringing enormous benefits to the Indian economy and its people, he said.
Another problem with the Indian judiciary, often overlooked by observers but elucidated by Robinson in his talk, is the fact that the governance of the Indian judiciary has been relatively insulated. “For the longest time, the collegiums have been calling the shots on appointments of judges to the Supreme Court. Since judges are trying to rise through the system, it is not in their interest to be very critical of those in the top notches of the judiciary.” This does not allow for a critical feedback loop, which would be a vital element in repairing the system.
However, he does not fail to recognize the constructive role played by this insulation of judiciary. “It has allowed for an independent judiciary to flourish in India. But we should recognize there are also some drawbacks and potential costs on the judiciary overall for having had such a system for decades. With the judicial appointments commission, though, we are beginning to see some potential changes to that system.”
In spite of the myriad problems and impediments for reforms, according to Robinson, there are two reasons to be optimistic about the future of Indian judicial system. One of them is the increasing number of intelligent and well-educated students coming out of law schools each year. Many of them rise through the judicial system to occupy the position of judges, while many others enter government and civil societies.
The second reason for optimism is simply that India is getting wealthier. Dealing with any kind of problems and implementing reforms are always easier when there is more wealth in the country, he held.
Is the low ratio of judges to population a reason for concern in India?
One of the perceived reasons for the backlog of legal cases in India is that the judge to population ratio is very low compared to that in countries such as the US. Narasappa raised questions over whether that is a relevant factor at all to consider when we talk of pendency and judicial delays. “Isn’t it more relevant to look at the number of cases entering the system rather than the ratio?” he asked.
Nick Robinson responded by saying that the judge to population ratio is indeed not the right place to look, especially in a country like India where there are millions in villages who never get anywhere near a court in their whole life. Under the circumstances, the number of cases entering the system is a more pertinent factor based on which the situation has to be assessed.
The judge to population ratio is also not very informative in itself as much depends on how much work each judge has. The problem with comparing this statistic across countries is that not many conclusions can be drawn because of too many variables. An inter-state comparison is more reliable than inter-country because of the constancies.
One such study, co-authored by Robinson himself, suggests that there should be more such cases in Mumbai, Chandigarh and Pondicherry than in the North-eastern states, where not many kinds of disputes come up.
One of the findings in the same paper is that the number of cases in a system has a direct correlation to the GDP, and even more so to the human development index of the state or country. That is to say, the better educated the population is, the longer they live, the more aware they are, and more is the number of cases filed.
Is the Indian judiciary hampered by over-litigation?
Several other interesting facts came out through the discussion, such as that there is really no litigation explosion in India, but rather litigation exclusion. Legal procedures are beyond the access of a large population of the country, pointed out Harish, but the judicial delay over cases already in court, gives us an impression that there has been a litigation explosion.
This was backed by Robinson as he added that renowned author and professor of law, Mark Galanter writes in one his papers that the number of litigations in the Indian judicial system is nowhere close to what is to be expected. The anecdotal world of the middle classes, and of those who frequent lawyer circles, skews one’s perception about how many cases enter the judicial system.
Ideally, India should be making way for a lot more cases to be filed, which is not to say that no reforms should be taken to improve the efficiency by preventing frivolous litigation. Reforms to make the system more efficient is essential precisely because we will see a lot more genuine cases being filed, with improvement in quality of life, concluded the panel.
Can judicial and police reforms serve as a viable political platform for elections?
This was another question raised during the session. How does the process of judicial correction take place in different countries, and can judicial reforms and police reforms be a viable political platform on which elections can be contested by political parties, instead of the usual “Roti, Kapda aur Makaan” stance or the promise of subsidies and free goods?
In Robinson’s opinion, it would serve as a viable platform only in countries that have lived under authoritarian regimes where police and military often intervene in civilian affairs. For example, soon after the imposition of Emergency in India, politics could have been organised around judicial and police reforms. But unless an experience under such regimes is imbibed in the national consciousness, this agenda in itself is unlikely to garner much support.
There might be resistance against legal reforms from the BAR and the judiciary, but not from the public, which makes the issue not overtly political, unlike cancellation of subsidies which will invite opposition from vast organised interests.
In developing countries like Bangladesh, Pakistan and many African countries, legal reforms are pushed by international organizations such as the IMF and the World Bank. But India is too powerful to be influenced that way, the speaker held, adding that it was, in fact, a good thing.
“There are many people out there who look for rapid solutions. But I have never seen any of them work.” Usually, it is progressive reforms that happen through a natural political process over many years that are sustainable and beneficial for the country.
