As 163a student of public policy and development studies, I was first introduced to the concepts of public sector reform through the school of thought known as new public management (NPM). The public sector has undertaken massive reforms under the auspices of the NPM, with the aim of bringing private sector–like efficiency and effectiveness in its functioning.¹ These reforms came in the form of privatisation, marketisation, increased focus on customers, and the like. Greater accountability and transparency were also objectives of such reforms. The Indian public sector landscape has thus seen widespread reform such as privatisation of banks and large public sector companies. The Indian judiciary is an important public institution. A properly functioning legal and judicial system is critical not only as an end in itself, but also as a means of facilitating the achievement of other goals and objectives of the Constitution. Finding better and more efficient ways to uphold the rule of law and deliver justice is the key to reforms in the judiciary.²

State of the Indian Judiciary

The 37th Chief Justice of India, Justice K.G. Balakrishnan, at the Indo–EU Business Forum in London in 2008, noted the inefficiency plaguing the judiciary and efforts undertaken to reform case management techniques to reduce backlogs.³ Similarly, the 13th President of India, Pranab Mukherjee, at a Bar Council seminar in Guwahati in 2013, observed the urgent need to reform India’s judiciary to keep up with the overwhelming current and future demands being made of the system. He also noted that such reforms were only possible with a thorough understanding of the current shortcomings and future needs of the system.⁴ There have been observations made in Law Commission 164reports starting from as early as 1958, calling for judicial reforms.⁵ These recommendations have been repeated in subsequent Law Commission reports of 2009⁶ and 2014.⁷ Chronic dearth of scientifically reliable and actionable data pertaining to the judiciary has been the biggest hurdle in achieving any measure of reform. Scope for judicial reform is vast, ranging from judicial appointments to improving court infrastructure. However, this chapter will focus primarily on reforms relating to access to justice, which is a fundamental right of all citizens.

Access to Justice Surveys

To address the lack of actionable data, DAKSH commissioned the ‘Access to Justice Survey’. The overarching purpose of the survey is to build a profile of litigants in the judicial system and map their access to justice, the results of which would highlight gaps in the system and facilitate reform. A useful tool to judge the efficacy of a new programme or initiative is to review existing research and literature.⁸ Since DAKSH’s Access to Justice Survey is the first of its kind in India, a look at other jurisdictions will prove useful in analysing the impact of such surveys on policy making.

This chapter will focus on the landmark Paths to Justice Survey conducted in England and Wales in 1997, its evolution and subsequent influence in the policymaking process of the government in the United Kingdom. The Paths to Justice Survey also influenced other jurisdictions such as Australia and the Netherlands, to adopt the tradition of using surveys to influence judicial reforms.⁹ Lessons from an analysis of surveys undertaken in other jurisdictions might be relevant in the Indian context, allowing comparison of legal institutional frameworks and exploring the possibility of policy transfer between jurisdictions.¹⁰ Table 1 provides a synopsis of some surveys conducted in different jurisdictions between 1990 and 2011 based on the Paths to Justice Survey tradition. There are also numerous developing countries such as Bangladesh, Kenya, Cambodia, and Timor-Leste that have conducted judicial surveys with aid from the World Bank, aiming to reform parts of their justice system.¹¹

TABLE 1. National Legal Need Surveys (Last 20 Years)

Source: Pascoe Pleasence, Nigel J. Balmer, and Rebecca L. Sandefur. 2013. Paths to Justice: A Past, Present and Future Roadmap. London: UCL Centre for Empirical Legal Studies.

Paths to Justice Survey

The Paths to Justice Survey was conducted during 1996–1998 by Prof. Dame Hazel Genn, professor of socio-legal studies at University College, London. It was commissioned by the Nuffield Foundation, an endowed charitable trust classified as a non-government, civil society organisation due to its economic and political independence. It was the first survey of its kind, conducted on a large scale by any organisation with the intent of gathering information about the public’s perception of the legal system, common legal problems, and possible resolutions to those problems as well as building a repository of data, based on which legal services in the United Kingdom could be improved.¹² The survey is thus classified as a legal needs survey, focusing on non-criminal matters. Although there was knowledge of the lack of access to justice and need for legal services in the United Kingdom during the mid-1990s, policymakers and other stakeholders such as lawyers and non-governmental organisations lacked the evidence required to develop effective policies and put it up for debate in the parliament.¹³ Genn was able to address this gap with the survey, whose findings were published in 1999. The survey was conducted on a sample group from England and Wales, with the research subsequently extending to Scotland with the Paths to Justice Scotland Survey. The Paths to Justice Scotland Survey was also funded by the Nuffield Foundation and carried out by Prof. Genn and Prof. Alan Paterson of Strathclyde University between 1997 and 1999.¹⁴

The Paths to Justice Survey covered 4,125 respondents from the general population of England and Wales who were administered the survey on an individual level, with a 64 per cent response rate. The survey presented respondents with 58 different sets of problematic circumstances which were capable of being decided in the justice system, also known as justiciable issues. If respondents reported having faced those circumstances in the reference period of five-and-a-half years, they were then asked how they dealt with the problem in subsequent questions. The survey did not specifically question the respondents whether solutions were legal in nature. This allowed the survey to map the differing paths taken by respondents to resolve problems classified as legal in nature, while also determining a correlation between the respondent’s socio-economic background and the path chosen. Questions included uncovering the nature of problem, strategy adopted to resolve the problem, nature of help obtained, and level of satisfaction with the help obtained, duration and mode of contact, processes used such as mediation, 166court or tribunal, objectives, form of outcome, details of costs incurred, attitudes, awareness, and demographics.¹⁵ This survey resulted in bringing to light structural factors that impede access to justice including costs, complicated procedures, and lack of awareness of the same. Most importantly, it helped bring to light the public’s perception of the justice system, and whether citizens perceive that justice is being served in the system.

The Paths to Justice Survey was repeated in 2001 in England and Wales and was known as the Civil and Social Justice Survey (CSJS). The CSJS was carried out by the Legal Services Research Centre, an independently managed research division of the Legal Services Commission in collaboration with Prof. Genn. The Legal Services Commission was an executive arm of the Ministry of Justice, responsible for administering legal aid until 2013.¹⁶ Since the Ministry of Justice institutionalised the survey, the Nuffield Foundation did not see the need to further fund the survey and research. Government investment in the survey demonstrates the importance of survey findings for the process of policy development. Further iterations of the CSJS Survey were conducted in 2004, and on a continuous basis between 2006 and 2009. The survey questionnaire was influenced by members of the Treasury and interpretation of survey findings was guided by members of the Legal Services Commission.¹⁷ The CSJS was replaced by the Civil and Social Justice Panel Survey (CSJPS) in 2010 and was again carried out in 2012. Significant changes were made to the CSJS from the initial Paths to Justice Survey and to the CSJPS based on the experience of the CSJS, with a view to incorporate findings and fill in gaps identified at each instance.¹⁸ For example, the focus of the CSJS survey shifted to problem resolution and decision-making as well as a change in the structure of the questionnaire to garner greater demographic information.

Subsequently however, due to funding from, affiliation with, and influence of the government, the survey lost its political and financial independence, throwing into question the objectivity of its findings. This aspect is particularly important in analysing how survey findings have influenced government policies in the United Kingdom, since surveys can be manipulated to push forward preferred policies. Governments tend to omit or control the release of data for political gains and hence data from surveys commissioned by governments are susceptible to manipulation.¹⁹ Changes in public policy often depend on how an issue is framed and how research reports, surveys, and data are interpreted. Surveys and research can be used to defend, endorse, or maintain the status quo of policies.²⁰

Impact of the Paths to Justice Survey

The survey is known to have transformed understanding of public justice needs and influenced the way legal services are delivered in the United Kingdom. The Legal Services Commission, in a report²¹ published in 2005, used findings from the CSJS surveys to set out its strategy. Of vital importance is the incorporation of survey findings in the design and delivery of legal services. The initial Paths to Justice Survey uncovered that, across a wide range of income groups there was great demand for the advice, information, and assistance provided by Community Legal Service, all of which were not being met. Findings from the 2001 and 2004 CSJS surveys, published in a report in 2004, greatly influenced the development of a Community Legal Service focused on issues that affect the socially disadvantaged and excluded groups, since these surveys provided an opportunity to evaluate civil justice policies over the long run. According to the 167Paths to Justice Survey, migrant communities from non-English speaking backgrounds, illiterate and less educated people were at a disadvantage when it came to solving legal problems.²² However, Prof. Genn’s survey has been criticised by the Legal Action Group,²³ noting that it tended to marginalise the experiences of the above-mentioned disadvantaged groups, and that the sample size did not adequately capture the need for legal services within the group.²⁴

In the 2005 Legal Services Commission report, Lord Falconer of Thoroton, Secretary of State for the Department of Constitutional Affairs noted the groundbreaking role played by the Paths to Justice Survey in providing a unique insight into the role of legal services in ensuring access to justice. He noted that in the era of evidence-based policymaking, the surveys provided ample evidence to aid the formulation of innovative policies.²⁵ The survey report was used to drive and support policy change, influenced expenditure on legal aid through the Legal Services Commission, and found its way into a number of English and Welsh government publications. The impact of the Paths to Justice Survey and CSJS can be illustrated as below:

1. Spending prioritisation: The Legal Services Commission was directly informed by the CSJS data. The CSJS findings during the period 2008–2011 were that reliable and good early advice prevents simple civil issues from escalating into complicated legal problems. The Legal Services Commission, therefore, developed a framework to join their services with legal aid providers to address and reconfigure the delivery and organisation of legal aid, based on the needs of a particular area.²⁶ The Constitutional Select Committee’s report in 2004 on legal aid matters used the 1999 Paths to Justice and the 2001 CSJS survey findings extensively as evidence to question the government regarding legal needs that were not being met, with fewer people being helped by the Legal Services Commission. This was in the context of legal reforms by the government that put a cap on civil legal aid expenditure that would adversely impact disadvantaged and socially excluded groups.²⁷ In response, the government referred to the Community Legal Service Direct programme, improving signposting into the Community Legal Service from other key services, and projects funded by the Partnership Initiative Budget, to showcase the initiatives undertaken to improve issues of access to justice.²⁸ The government also deferred any other action until findings from 2004 CSJS were released, stating that it would reflect the true state of affairs.

2. Public legal education initiatives: The 2004 CSJS survey pointed towards gaps in the knowledge, skills, and confidence of the sample population.²⁹ The survey reflected a high level of mismatch between actual provisions and the respondent’s perception of local advice provisions. The survey findings also noted that respondents were unaware of the legal provisions and resources available to them, and did not do anything to solve their justiciable problems. The survey also recommended that certain social and demographic groups would greatly benefit from educational initiatives.³⁰ The recommendation made by the CSJS report regarding public legal education was taken up, and a National Public Legal Education Strategy was designed by the Public Legal Education and Support Taskforce (PLEAS). PLEAS consisted of school teachers, lawyers, university professors, directors of not-for-profit organisations, members of the Bar Council, Justice Society, Ministry of Justice, and the like as 168members. PLEAS was to develop a proposal on how best to promote and improve public legal education. Following the taskforce’s report, a Public Legal Education Network was developed to accumulate a body of knowledge of what makes for successful public legal education.³¹

3. Redesigning existing legal aid services: The 1999 Paths to Justice Survey as well as the 2001 and 2004 CSJS identified problem clustering as an issue in the civil justice landscape. The surveys used cluster and factor analysis to establish general and underlying connections between different problem types and arrived at the most prevalent cluster.³² In order to address issues underlying the cluster, the Legal Services Commission responded by establishing Community Legal Advice Centres and Networks that offered a range of expert advice under one roof, thus minimising multiple referrals. By 2010 this initiative had provided significant benefits to the community. The model of service delivery was changed to combine social welfare services such as debt, housing, welfare benefits, and employment along with legal aid.³³

Scope for DAKSH’s Access to Justice Survey

There is significant scope for findings from DAKSH’s Access to Justice Survey to influence and shape policy processes and reforms in the Indian judiciary, since it is the first of its kind, and as with the Paths to Justice Survey, it will no doubt provide unique insight into the state of the Indian judiciary. There is considerable overlap in the objectives of both surveys. Yet, the application and relevance of both surveys is likely to vary considerably. The Access to Justice Survey’s primary data will be open source and made available to research organisations and think tanks to interpret and analyse. Therefore, myriad interpretations will likely be derived from survey findings, dependent on the organisation’s agenda and framing of the policy problem under investigation. However, the value attached to the findings of DAKSH’s survey cannot be undermined. Various stakeholders, state and non-state, will have uses for such data.

Survey Limitations and Risk Mitigation

As with all surveys, there are certain limitations to the Access to Justice Survey. However, to the extent possible, survey design and data collection processes have looked to mitigate risks commonly associated with surveys of this size. For example, selection bias plays a significant role, since in any randomised sample survey, surveyors decide which respondents to approach for an interview. In the Access to Justice Survey, there was a risk of excluding a section of litigants unintentionally, such as under-coverage of female litigants, since most surveyors are male and owing to cultural norms, surveyors were hesitant to approach women. However, DAKSH survey guidelines required surveyors to interview an equal proportion of male and female litigants at a given location. An initial review of the survey data (in February 2016) showed that the proportion of women litigants interviewed by surveyors corresponded to the proportion of women in the justice system.³⁴ A common problem with surveys is ensuring the integrity of primary data. Due to the real time nature of the Access to Justice Survey data feeding into the database, surveyors cannot amend answers on the data form and in the 169event of incorrect data being submitted, surveyors are required to conduct fresh interviews. Such controls ensure data reliability and integrity, increasing confidence in the survey findings.

As observed in the Paths to Justice Survey, identity of the survey sponsor has a significant impact on survey respondents and their responses. Respondents may be less or more likely to participate depending on the identity of the survey sponsor.³⁵ However, in case of the Access to Justice Survey, DAKSH as a non-profit, civil society organisation is ideally placed to elicit responses that are unbiased and objective. With respect to the Access to Justice Survey, linguistic diversity in India poses particular problems for surveyors since surveyors need to be able to converse in the language used by litigants, which may not necessarily be the case every time. Employing interpreters to aid in surveying might result in interpreter bias or occasional mistranslation affecting primary data. Surveys in the United Kingdom are not affected by this limitation except in the case of surveying immigrant communities where English may not be the principal language.³⁶ To work around this limitation, DAKSH insists that surveyors with proficiency in the native language of the state conduct survey interviews.

However, one drawback of the Access to Justice Survey is that response rates cannot be determined since the number of litigants approached but not surveyed is not recorded by the surveyor. An important objective in recording response rates is to determine the level of interest litigants have in contributing to the process of change in the legal system.³⁷ A valuable insight could have been gained from recording response rates. Table 2 encapsulates the key features of both surveys.

TABLE 2. Comparison between Paths to Justice UK and Access to Justice India

Source: Data for the table is sourced from Pascoe Pleasence, Nigel J. Balmer, and Rebecca L. Sandefur. 2013. Paths to Justice: A Past, Present and Future Roadmap. London: UCL Centre for Empirical Legal Studies and DAKSH’s survey guidelines.

It is the expectation of all those involved with DAKSH’s Access to Justice Survey that it will result in initiating and contributing to the reform debate in the Indian judiciary, and allowing for greater access to justice to be achieved. The hope is a shift from a focus on lawyers and courts to litigants, so that policies are designed to meet the needs of the public. Surveys such as these, as evidenced from the experience in the United Kingdom, bring to light unique datasets and analyses to underpin evidence-based policymaking, and inform debates that advocate for reforms.

Notes

1. 170David Osborne and Ted Gaebler. 1992. Reinventing Government: How the Entrepreneurial Spirit is Transforming the Public Sector. Reading Mass: Addison Wesley Public Comp.

2. World Bank. 2012. ‘The World Bank: New Directions in Justice Reform – A Companion Piece to the Updated Strategy and Implementation Plan on Strengthening Governance, Tackling Corruption’, The World Bank Working Paper no. 70640, available online at http://www-wds.worldbank.org/external/default/WDSContentServer/WDSP/IB/2012/09/06/000386194_20120906024506/Rendered/PDF/706400REPLACEM0Justice0Reform0Final.pdf (accessed on 19 March 2016).

3. Justice K.G. Balakrishnan. 2008. ‘Judicial Reforms in India’, Keynote Address at the Indo-EU Business Forum, London, 31 October 2008.

4. Pranab Mukherjee. 2013. ‘Speech by The President of India, Shri Pranab Mukherjee on the occasion of the inauguration of National Seminar on “Continuing Legal Education” and “Children and Law - Juvenile Justice System Including Protection of Children from Sexual Offences Act, 2012”’, President of India, 22 October, available online at http://presidentofindia.nic.in/speeches-detail.htm?72 (accessed on 7 January 2016).

5. Law Commission of India. 1958. ‘Reform of Judicial Administration’, Report No. 14. New Delhi: Government of India.

6. Law Commission of India. 2009. ‘Reforms in the Judiciary – Some Suggestions’, Report No. 230. New Delhi: Government of India.

7. Law Commission of India. 2014. ‘Arrears and Backlog: Creating Additional Judicial (wo)man Power’, Report No. 245. New Delhi: Government of India.

8. John W. Creswell. 2009. Research Design: Qualitative, Quantitative, and Mixed Methods Approaches. Thousand Oaks, CA: SAGE Publications.

9. Francis Regan. 2003. ‘Paths to Justice: What People Do and Think about Going to Law by Hazel Genn and Paths to Justice Scotland: What People in Scotland Do and Think about Going to Law by Hazel Genn and Alan Paterson’, Alternative Law Journal, 28(4): 204.

10. David Benson and Andrew Jordan. 2011. ‘What Have We Learned from Policy Transfer Research? Dolowitz and Marsh Revisited’, Political Studies Review, 9(3): 366–378.

11. Kristen Himelein, Nicholas Menzies, and Michael Woolcock. 2010. ‘Surveying Justice: A Practical Guide to Household Surveys’, The World Bank, Justice and Development Working Paper Series 11, no. 55993.

12. Legal Action Group. 2013. ‘Paths to Justice’, available online at http://www.lag.org.uk/magazine/2013/11/paths-to-justice.aspx (accessed on 13 January 2016).

13. University College London. 2014. ‘Reshaping Policy and Practice on Citizens’ Access to Justice in the UK and Around the World’, Impact case study, available online at http://impact.ref.ac.uk/casestudies2/refservice.svc/GetCaseStudyPDF/38632 (accessed on 20 March 2016).

14. University College London, ‘Reshaping Policy and Practice’.

15. Pascoe Pleasence, Nigel J. Balmer, and Rebecca L. Sandefur. 2013. Paths to Justice: A Past, Present and Future Roadmap. London: UCL Centre for Empirical Legal Studies.

16. It has since been abolished.

17. Pascoe Pleasence, Alexy Buck, Nigel Balmer, Aoife O’Grady, Hazel Genn, and Marisol Smith. 2004. Causes of Action: Civil Law and Social Justice. London: Legal Services Commission.

18. Nigel Balmer. 2013. English and Welsh Civil and Social Justice Panel Survey: Wave 2. London: Legal Services Commission.

19. Legal Action Group. ‘Paths to Justice’.

20. Thomas A. Birkland. 2006. ‘Agenda Setting in Public Policy’, in F. Fischer, G.J. Miller, and M.S. Sidney (eds), The Handbook of Public Policy Analysis: Theory, Politics and Methods, pp. 63–78. Boca Raton: CRC Press.

21. Legal Services Commission. 2005. ‘Making Legal Rights a Reality’, available online at http://asauk.org.uk/wp-content/uploads/2005/09/Making-Legal-Rights-a-Reality.pdf (accessed on 20 March 2016).

22. Philip Lewis. 2000. ‘Book Review of Paths to Justice: What People Do and Think about Going to Law by Hazel Genn’, Journal of Law and Society, 27(4): 643–649.

23. Legal Action Group, ‘Paths to Justice’.

24. The Access to Justice Survey, however, does not face this drawback since guidelines set forth adequately counter any sampling bias, discussed in subsequent sections.

25. Pleasence, et al., Causes of Action.

26. Legal Services Commission. 2008. ‘Legal Services Commission: Strategic Plan 2008-11’, available online at http://webarchive.nationalarchives.gov.uk/20111222184934/http://www.legalservices.gov.uk/docs/archive/Strategic_Plan_2008.pdf (accessed on 20 March 2016).

27. Constitutional Affairs Committee. 2004. ‘Civil Legal Aid: Adequacy of Provision’, Volume 1, House of Commons, available online 171at http://www.publications.parliament.uk/pa/cm200304/cmselect/cmconst/391/391.pdf (accessed on 10 February 2016).

28. Secretary of State for Constitutional Affairs and Lord Chancellor. 2004. ‘The Government’s Response to the Constitutional Affairs Select Committee’s report on Civil Legal Aid – Adequacy of Provision’, available online at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/251109/6367.pdf (accessed on 20 March 2016).

29. University College London, ‘Reshaping Policy and Practice’.

30. Alexy Buck, Pascoe Pleasence, and Nigel Balmer. 2007. Education Implications from the English and Welsh Civil and Social Justice Survey, Annexe to the PLEAS Task Force Report. London: PLEAS Task Force Report.

31. Alexy Buck and Liz Curran. 2009. ‘Delivery of Advice to Marginalized and Vulnerable Groups: The Need for Innovative Approach’, The Journal of Law and Social Justice, 3(7): 1–29.

32. Pleasence, et al., Causes of Action.

33. University College London, ‘Reshaping Policy and Practice’.

34. National Judicial Data Grid. 2016. ‘Summary Report of India as on Date’, available online at http://164.100.78.168/njdg_public/main.php (accessed on 25 February 2016).

35. Constitutional Affairs Committee, ‘Civil Legal Aid’.

36. Pascoe Pleasence, Nigel Balmer, Ash Patel, and Catrina Denvir. 2009. ‘Civil Justice in England and Wales 2009’, Legal Services Commission, available online at http://webarchive.nationalarchives.gov.uk/20110216140603/http:/lsrc.org.uk/publications/2010CSJSAnnualReport.pdf (accessed on 20 March 2016).

37. Pleasence, Balmer, and Sandefur, Paths to Justice.