<<Previous Table of Content Next>>

Introduction

page.png xxvii Shruti Vidyasagar

Ramya Sridhar Tirumalai

 

Science begins with counting. To understand a phenomenon, a scientist must first describe it; to describe it objectively, he must first measure it.

Siddhartha Mukherjee, The Emperor of All Maladies

These words, written by Mukherjee in his seminal biography of cancer, aptly characterise the principal purpose of DAKSH’s Rule of Law Project, which is to understand the justice-delivery system in India using a data-driven approach.

In 2016, DAKSH released a report, titled State of the Indian Judiciary (SoJR), in which we focused on the most visible face of the justice-delivery system in India — the judiciary. In evaluating the work of the judiciary, we considered its primary challenge — pendency in the courts — as a means to understand how delays in the progress of cases affect citizens and the economy. We also presented findings from our pioneering survey on access to justice, which recorded litigants’ perceptions of, and experiences within, the judicial system.

As we pondered on the composition of DAKSH’s second report, we decided to retain the two principal aspects of the SoJR — delays in the judicial system and access to justice — as the fulcrum of this year’s report also, but examine them both more deeply and broadly. While the SoJR explored the systemic issues of administration and accountability in the judiciary, this year’s report is an in-depth scrutiny of the performance of courts, with an emphasis on their workload, case flow, and efficiency. While the SoJR reflected on access to justice, and in particular, its institutional dimensions (mainly relating to the judiciary), this year, we consider ‘justice’ more page.png xxviii expansively — in terms of its underlying ideas, its administration and delivery by non-judicial bodies, as well as the various approaches to it in India.

Justice, Access, and the Nation’s Approaches

The quest for justice is a millennia-old pursuit that is deeply entrenched in mythology, philosophy, and human consciousness. Today, justice is considered a key tenet of any society, and particularly in a democracy.

Justice, and how it is delivered, is central to DAKSH’s work. In a nation as vast and heterogeneous as India, there are at least as many paths to justice as there are problems or disputes. Therefore, we broadened our enquiry on the question of access to justice, by viewing justice through a wider prism and examining non-judicial means of dispute resolution in this year’s report, which we have entitled Approaches to Justice in India.

Ideas of Justice

What are peoples’ ideas of justice? How are these conceptions formed? What are their perceptions of the justice system? Contributors reflect on these and other questions in the opening section of the report.

Ashwin Mahesh, in a thought-provoking chapter, deliberates on the common expectation of justice amongst citizens. He notes that notions of fairness, standards of justice, actors in the system, and related institutions are all intertwined in how citizens feel and understand justice, and its administration. Mahesh advises citizens themselves to take the lead in the effort to improve perceptions of administration of justice, for then, citizens can shape the justice system, becoming producers (and not merely consumers) of the system they desire and expect.

This call to the community as a whole, to participate in moulding a system in which laws are accepted through the processes approved by citizens themselves, seems to echo the approach practised by Mahatma Gandhi, who believed that laws of the land may acquire force through institutions, but for them to gain acceptance, they must involve citizens at the grass-root level. As Sudarshan Iyengar explains in his layered chapter, ‘Gandhi’s Jurisconscience: Evolution of His Ideas of Justice’, the development of Gandhi’s idea of justice in the context of jurisprudence (law of the land) and jurisconscience (natural law) began when he was a student and continued during his civil disobedience movement in the face of institutional atrocities, both in South Africa and India. Gandhi’s convictions are based on looking inward, both when one has done wrong and when one has suffered wrong. In the former case, one must develop the moral courage to not only accept one’s own fault and feel remorse, but also to accept punishment as one’s due. In the latter case, the first step is to forgive the wrongdoer — through ahimsa (non-violence), the highest form of forgiveness — to correct the wrongdoer.

Forgiveness, in the context of dispute resolution, involves the eschewal of ego. For, as Shivamurthy Shivacharya Mahaswamiji points out in ‘Saddharma Nyaya Peetha: The Role of Taralabalu Math in Resolving Disputes’, in his experience (spanning several decades) of resolving people’s disputes, ‘ego, hatred, and selfishness’ of parties are the main obstacles in reaching a settlement. In Swamiji’s view, which he clarifies is one he holds a religious leader, justice means alleviation of people’s pain, hardship, and suffering, and its page.png xxix essential purpose is to enable people to live with dignity, peace, and happiness.

Paths to Justice

DAKSH interviewed Swamiji as part of its project on judicial and non-judicial means of dispute resolution. The Saddharma Nyaya Peetha (‘open court session’) conducted by the Taralabalu Math in Sirigere is an age-old practice of mediation, which has now been modernised by the Swamiji by documenting proceedings, providing procedural structure, and incorporating the use of technology. From Swamiji’s succinct responses, a picture emerges of the religious institution taking up a social responsibility to provide its followers a means of settling disputes amicably. More tellingly, the number of cases that Swamiji sees in a year — about 1,200 — shows that people value the sense of agency, control, and transparency that this process allows them.

Mediation as an alternative dispute resolution (ADR) process has found legislative sanction in India, as Tara Ollapally, Annapurna Sreehari, and Shruthi Ramakrishnan point out in ‘The Mediation Gap: Where India Stands and How Far It Must Go’. However, there are several infrastructural hurdles to implementing mediation as an effective ADR method, not least of which is that the ambiguous wording of the statutory amendment to the Civil Procedure Code, which enables disputes to be referred to mediation, leads to more problems than solving any. In their discussion on the Indian legal landscape and frameworks with respect to mediation, Ollapally, Sreehari, and Ramakrishnan recommend steps that need to be taken to develop a more conducive ecosystem for mediation to flourish as an effective dispute resolution process, accepted not only by litigants but also amongst the judiciary.

Accessing Justice

It is well documented that in resolving disputes, Indian society has constantly developed alternative means to suit local needs and changing circumstances. To understand this better, DAKSH conducted a survey earlier this year to understand the various modes of dispute resolution used in India (including, but not limited to, courts), and the experiences of people who used these methods. The findings of the household survey, undertaken across India, in which we collected more than 45,000 responses, are set out in the chapter titled, ‘Paths to Justice: Surveying Judicial and Non-judicial Dispute Resolution in India’. Here, Padmini Baruah, Shruthi Naik, Surya Prakash B.S., and Kishore Mandyam present key results from the survey, including the kinds of disputes people face, modes of dispute resolution they choose, reasons why some people prefer not to resolve their disputes, peoples’ experiences with the police, and costs of resolving their disputes. The survey presents a stark picture of the extent of people’s confidence in justice-delivery systems — both judicial and non-judicial — as well as their reasons for reposing that trust and faith. The findings also reiterate a crucial fact — financial costs not only constitute a significant barrier to accessing justice, but also determine people’s choice of method (or institution) to resolve their disputes.

This brings home the irrefutable fact that provision of legal aid is vital in ensuring access to justice. In India, currently, administering the legal aid system is the responsibility of serving members of the judiciary, unlike in several other nations, where that duty has been transferred to professional managers. Shruthi Naik, in the chapter titled, ‘Manpower Malady: Managing Legal Aid Institutions’, carefully assesses the amount of work involved in running the legal aid system in India. She finds that judges must make time from their busy schedules page.png xxx (court work with considerable caseloads, as well as administrative activities) to supervise the day-to-day functioning of legal services authorities. After evaluating legal aid administration models followed internationally, Naik proposes a solution to ensure a balance between reducing the work of an overburdened judiciary and the efficient administration of legal aid. She suggests the setting up of a separate unit for delivery of legal aid, comprising people with the knowledge of India’s socio-economic realities, experience in running welfare programmes, and strong managerial credentials, that is in charge of everyday operations of legal services authorities and implementation of legal aid programmes, while the judiciary is the monitoring agency, with the authority to make high-level policy decisions.

While changes to existing policies or framing new policies is essential to keep pace with changing circumstances, for any measure — regardless of whether it originates from the legislature, executive, or judiciary — to bear fruit, it must be implemented in a sustained manner and become institutionalised. Failure to do this will mean a failure of the policy itself. This is exemplified in the chapter titled, ‘Bail and Incarceration: The State of Undertrial Prisoners in India’, written by Aparna Chandra and Keerthana Medarametla, who find, after studying data from the past 15 years on the incarceration of undertrial prisoners in India, that despite various reform measures by the legislature and judiciary, not only is the extent and duration of incarceration of undertrial prisoners on the rise, but also that it has a disproportionate impact on the most socio-economically vulnerable sections of our society. Chandra and Medarametla find that judicial interventions on bail law have focused on ‘one-off’ measures and therefore suffered from want of sustained and systematic follow-up, while legislative changes have not been implemented consistently, meaning that both efforts have had little ameliorative impact.

Assessment of Court Performance

In the SoJR, we had pointed out several problems with the organisation of data available on the websites of the High Courts and subordinate courts, as well as the e-courts system. The main criticism was that owing to their design and maintenance as repositories of data to provide information to litigants/lawyers on their cases, they are useful only to that extent — with people’s interactions with these websites being essentially of a transactional nature — it enabled them to access only individual case-related information. Little thought seemed to have been given to an equally (if not more) important aspect — collection, organisation, and maintenance of, and access to, data in a way as to facilitate and indeed, encourage, analysis of courts’ work beyond individual cases. We had commented that data must be made available in a form capable of systemic analysis. That, we had said, was the real test of the usefulness of such repositories — how much of their data could be converted to information?

DAKSH’s Rule of Law Project sought to fill this gap, by creating one single database containing case and hearing information from High Courts and subordinate courts on an analysable platform. This database has been continuously updated, and as of August 2017, contained information on approximately 1.13 crore cases filed in courts across India.

In this report, two sections are dedicated to showcasing the various kinds of analyses that can be carried out using case-related data, testifying to the utility of the data-driven approach in assessing court performance.

The chapter titled, ‘Deconstructing Delay: Analyses of Data from High Courts and Subordinate Courts’, by Arunav Kaul, Ahmed Pathan, and Harish Narasappa, makes use of data from DAKSH’s database and the National Judicial page.png xxxi Data Grid (NJDG) — a government website containing summaries of case-related data from district courts — to carry out complex analyses to measure courts’ pendency, efficiency, and workload, as well as the progress of cases in the High Courts and subordinate courts. They also use various parameters, including internationally accepted norms such as case clearance rates, in their analyses of cases from a particular territory (Delhi) and those belonging to a specific category (execution cases). Significantly, Kaul, Pathan, and Narasappa find a positive correlation between a state’s gross domestic product (GDP) and the level of civil litigation in that state, indicating that states which contribute more towards India’s GDP have a higher percentage of civil cases pending in the country (the exception is Uttar Pradesh). This is borne out by the findings from our survey (conducted earlier this year) on access to justice too, where we found a relationship between the income level of people and the mode they choose for dispute resolution, that is, the higher a person’s income, the more likely she is to approach a court, rather than a non-judicial institution, to resolve her dispute.

In ‘Promise to Pay: An Analysis of Cheque Dishonour Cases’, Ramya Sridhar Tirumalai examines a significant and ubiquitous cause of congestion in subordinate courts — cheque dishonour cases. Tirumalai notes how, despite explicit Supreme Court guidelines on dealing expeditiously with ‘cheque bounce’ cases, not even one amongst the 144 districts (across 21 states) — from whose courts she collected and reviewed cases — had an average pendency of less than two years. Tirumalai identifies the stages at which most cases remain pending, as well as complainants who file cases most frequently. She recommends interventions in court processes to free up court time and mitigate delays, and also suggests that banks and financial institutions (as frequent complainants), come up with a system to blacklist repeat offenders to avoid new cases from being filed.

Alok Prasanna Kumar’s chapter, ‘Government Litigation: A Study of Tax Appeals in Karnataka and Gujarat’, focuses on government litigation, which is often blamed for the large pendency of cases in courts. Noting that precise figures are elusive to support or belie this claim, he studies a specific type of government litigation, namely, tax appeals in High Courts, to assess the government’s litigiousness. In particular, he considers whether any patterns emerge from the data to suggest that perverse incentives contribute to the approaches of the governments. Kumar compares the number of income tax appeals in the High Courts of Karnataka and Gujarat (in which the union government is a party), with sales and value added tax appeals before the High Courts of Karnataka and Gujarat (where the state governments of Karnataka and Gujarat, respectively, are involved). He finds that the central government seems far more litigious than the state governments when it comes to tax appeals, and concludes that it immediately needs to rethink its approach to tax litigation.

In ‘Performance Indicators: Working of Magistrates’ Courts in India’, Arunav Kaul studies in depth the functioning of the magistrates’ courts, which form the foundation of the criminal justice system in India. Given the high number of criminal cases pending in the subordinate courts, it is important to understand the manner in which magistrates’ courts handle case flow. In this chapter, Kaul studies the top 10 magistrates’ courts in India, with the most number of pending cases, and evaluates their workload, distribution of pendency in cases, rate at which cases are being disposed, ageing and backlog, as well as case clearance rates.

Tribunals are quasi-judicial institutions established to solve the problems of pendency page.png xxxii and delay by reducing the workload of courts. Amulya Purushothama and Padmini Baruah, in ‘Diversification and Efficiency: A Case Study of the Karnataka Appellate Tribunal’, conduct an empirical study to examine the efficiency and efficacy of the Karnataka Appellate Tribunal (KAT), to understand whether it has fulfilled these goals. They evaluate whether the KAT works efficiently by disposing of cases, as well as whether it acts as an effective court of appeals and thus reduces the caseload of the High Court of Karnataka.

International Illustration

To understand how other jurisdictions deal with court administration and case flow management, we invited Leah Rose-Goodwin, manager of the Office of Court Research at the Judicial Council of California, the central policymaking and administrative agency of the California state court system, to contribute to the report. In her chapter, ‘California’s Courts: Judicial Administration and Case Flow Management’, Rose-Goodwin discusses how California’s court system, despite being one of the largest in the world, has to deal with several challenges in implementing trial court unification and case flow management, owing to lack of centralised data, severe loss of funding due to national recession, and an emphasis on local decision-making rather than statewide standards. She says however that despite these difficulties, the California Judicial Branch is inclined towards using data and analytics to measure and report case flow management indicators, which are critical to better understanding court workload, the need for judges, and funding requirements of branches.

Thus, every court system has challenges; what is important however is that in order to overcome them, we need not only plans and programmes, or merely the will and wherewithal to implement them, but professional personnel with the spirit and commitment to persevere.

Measures for Improvement

In addition to closely studying delay in the disposal of cases by courts, and the backlog faced by the judiciary as a consequence, members of the DAKSH team have interacted extensively with several judges — both from the higher judiciary and the subordinate judiciary, as well as registrars, court clerks, and other administrative staff of courts. Given the various problems with the current system of court administration and case flow management, particularly in the subordinate judiciary, Harish Narasappa, in his chapter, ‘Maximising Judicial Time: Measures to Combat Delay and Pendency in Subordinate Courts’, identifies essential measures that must be put in place at the earliest, so tackling delay and pendency can begin. He says that creating a cadre of dedicated administrative personnel, managing cause lists, and using technology are critical to reducing uncertainty of hearings and maximising judicial time.

Our discussions have also led us to question the anachronistic budgeting systems followed by the judiciary in India, and ask how they may be improved so that the considerable resources at the judiciary’s disposal may be allocated and managed more soundly and with better results. In their chapter titled, ‘Judicial Budgets: From Financial Outlays to Time-bound Outcomes’, Avanti Durani, Rithika Kumar, and Neha Sinha, reiterate the point made by Surya Prakash B.S. in the SoJR, that budgets for the judiciary have been based on recurring historical expenses rather than a scientific planning process, and have thus failed to provide for capacity building or targeting desired outcomes. Durani, page.png xxxiii Kumar, and Sinha suggest a shift to a time-bound ‘outcome’-based approach from an ‘outlay’-oriented budget, through a framework of performance indicators, in order to improve judicial efficiency.

Personnel and Processes

The report also contains contributions from two essential actors in the criminal justice system — the police and the prosecutor. This year, along with experiential narratives of what it means to be part of the criminal justice system, the contributors also discuss various problems in the system, which not only affect their work but also undermine the system. They suggest reforms to improve the system, both inherently and in terms of efficiency.

In ‘Trusting the Police: Challenges of Criminal Investigation and Trials in India’, R. Sri Kumar, former DGP & IGP of Karnataka and an ex-member of the Vigilance Commission, highlights the difficulties of the police during investigation and trial of criminal cases. Using his own experiences as examples, he recommends changes to processes and procedures, so that the police can work with other actors to improve the efficiency of the criminal justice system.

In ‘Beyond Reasonable Doubt: A Prosecutor’s Views on the Criminal Justice System’, Jude Angelo, a public prosecutor working in Tamil Nadu’s subordinate courts, shares her experiences and understanding of the criminal justice system. Angelo takes note of the various nuances of the system, as well as its successes and failures. She also discusses the daily challenges that prosecutors face in bringing the accused to book. While she proposes some measures for reform, Angelo is confident that processes, which are already in place, need only greater clarity and proper application, for them to achieve efficiency.

Systemic Transformation

Justice P.N. Prakash, a sitting judge in the High Court of Madras, was admittedly inspired by the SoJR to contribute a chapter to this report. He begins with a brief empirical study of cases that appeared in his court during a three-month period when he was posted to the Madurai Bench. Looking at the list of frivolous cases that he had to contend with, Justice Prakash laments that a constitutional court has been reduced to deciding which of the factions in a municipality has the right to use the microphone during festival days. He also paints a vivid picture of litigants playing the numbers game by filing multiple cases in relation to the same dispute, demonstrating how such a practice not only adds to the court’s list of pending cases, but also to the culture of frivolous litigation. To overcome this, Justice Prakash emphasises the need for systematically collecting data on cases, to find methods and allocate resources to prevent such filings. Failure to do this, he warns, will weaken the judiciary and imperil democracy.

In examining the work of judges, some relevant questions arise: Does the length of judges’ tenure have any effect on the disposal rate of cases they handle? Does length of tenure have any effect on judicial behaviour? Is there a connection between the tenure of judges and the types of cases they are assigned to adjudicate? How often are judges with shorter tenures involved in the Constitution Benches? Does the uninterrupted presence of judges in the Supreme Court from the parent High Court of a state have any implications on litigants originating from such states? These, and other questions, are raised by Rangin Pallav Tripathy and Gaurav Rai, in the chapter titled, ‘Judicial Tenure: An Empirical Appraisal of Incumbency of Supreme Court Judges’, adding a new dimension to the discussion on appointment of judges to the Supreme Court.

page.png xxxiv With the objective of introducing a more objective layer to what they call a subjective and value-laden debate surrounding judicial appointments, Tripathy and Rai tabulate the tenure of Supreme Court judges and their tenure in the High Courts before being appointed to the Supreme Court. They compare the tenures of judges appointed by the executive and the collegium, and note the representation of parent High Courts in the Supreme Court based on the regularity and duration of representation of judges from those High Courts in the Supreme Court. This analysis of tenures does reveal some unquestionable historical disparities, but Tripathy and Rai opine that this kind of empirical study should only be the beginning of a more sustained inquiry on the institutional impact of the tenure of judges.

Quest for Justice

Through the ages, the idea of justice has been tied to notions of fairness, virtue, morality, and law, in the consciousness of both individuals and society. Today, as we seek to balance competing interests — not only amongst individuals, but also individuals vis-à-vis society, community, and the environment — the prevalence of these ideas remain exceedingly relevant. They drive our enduring search for justice through means and methods that embody empathy, certainty, and transparency, so we can build institutions that offer us agency and dignity as individuals, and empower us as a society.

———