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DAKSH’s

137Access to Justice Survey is the first systematic study in India to explore the needs and expectations of the users of the judicial system — the litigants. The survey assesses how justice is being delivered in courts across the country. It maps litigants’ perceptions on several issues relevant to their experiences in the judicial system, such as the factors that influence the ease with which they can access the system, their ability to use the court system to resolve disputes effectively, the quality of judicial services, and the socio-economic fallout of judicial delay. The survey also gathers essential information about the background of litigants, nature of cases they are involved in, relationship between opposing litigants, and previous litigation experience. Since several actors are involved in the judicial process — judges, lawyers, and administrators — the survey also examines how their actions impact litigants’ rights. The findings of the survey will be valuable to both socio-legal researchers and the courts themselves.

The survey was conceptualised by the DAKSH team over the course of three months, to include questions about the socio-economic background of litigants and those pertinent to civil and criminal legal procedures. The questionnaires were designed separately for both civil and criminal cases — 63 questions for civil cases and 69 questions for criminal cases.

The survey interviewed a total of 9,329 litigants. The surveyors visited a total of 305 locations in 184 districts in 24 states. The initial locations were chosen randomly, from a total list of 4,566 district page

138courts made available on eCourts.gov.in, ensuring that the courts are representative of most of the states in the country. The surveyors were to visit to any one or two courts from the list of selected districts, and collect 20–40 responses from each court visited.

The survey form designed by DAKSH was made available on an Android-based app. All surveyors were therefore expected to own an Android phone with an active internet connection. The questionnaires were designed in a single scroll page on the app, with a mixture of multiple choice as well as single-point answers. All responses were recorded only at the completion of the survey via a ‘submit’ button, allowing the surveyor to double check and verify answers in the case of mistakes. The app was tested for errors by the DAKSH team before it was introduced to the surveyors.

Prior to the survey, which began on 15 October 2015, the DAKSH team conducted a training session with the survey team at Centre for Development, Planning and Research in Pune to establish rules of conduct and explain the intentions behind the survey. In this, it was emphasised that this survey was in no way interested in the legal merits of a case. Each surveyor was also instructed to use some form of randomisation in selecting respondents — making sure to include women, different case types, and to spend alternate days in the same court.

Using this app, the surveyors were to physically visit district-level courts — which are a mixture of civil and criminal courts — in 305 locations across India. Each surveyor was expected to spend up to three days in a court, and interview a minimum of 10–20 plaintiffs and 10–20 respondents in person. The surveyor was instructed to interview the litigants only on the court premises but not inside the court halls.

The survey respondents had to be persons currently involved in an ongoing case in the court that a surveyor visited. The surveyor was instructed to ensure that the person surveyed was not a relative or related person, but necessarily a plaintiff or respondent in the case. Likewise, the respondent could not be a representing lawyer. Surveyors were also asked to ensure that the persons surveyed were aware of the case number of their ongoing case.

The Access to Justice Survey app recorded the details of the questionnaires live on a Google-sheet that allowed the DAKSH team to monitor the integrity of the survey process. In addition, the DAKSH team made site visits to the courts where the survey was undertaken, to ensure that the surveyors complied with instructions.

1. Socio-demographic indicators: Age, education, occupation, annual family income, nature of household accommodation, types of assets owned.

2. Cost structures: Types and costs of travel, expenditure on hearings, cost of time spent, social support systems (family or friends accompanying litigant to court), expectations of outcome vis-à-vis time and delay, alternate methods of dispute resolution (if any) used prior to filing cases, access to lawyers, and case information.

3. Case-related information: Nature of case, subject matter of dispute, relationship between opposing parties to the case.

Findings from the survey reveal a story of hope and expectation. Hope is reflected in the fact that 55 per cent of civil litigants and 67 per cent of criminal litigants surveyed expected their cases to be resolved within a year when they first filed them. By the time we interviewed them, about three–five years had passed, and the litigants’ expectations from the system had dropped dramatically, with only 32 per cent of civil litigants and 42 per cent of criminal litigants still hoping for resolution within one year. The difference in the expectations of civil and criminal litigants is significant, as it tells us the urgency with which litigants come to the system. When asked about reasons for delay in their cases, the respondents cited judges not passing orders quickly (62 per cent), other party not appearing (27 per cent), and other party influencing the judge (8 per cent) as the contributing factors. Ten per cent of the respondents felt that there was no delay in their case. These perceptions tell us a great deal about the culture of courts, as experienced by the litigants.

While lawyers’ fees and court fees can be quite steep, the personal costs borne by an individual litigant can also be significant. On an average each litigant spent Rs 520 per day to attend court. Assuming a minimum of two litigants per case and multiplying it by the number of subordinate courts in the country (we have taken the number as 16,400, although according to the Supreme Court data there are at least 20,000 subordinate courts in the country), and the average number of hearings per day in each court, we can calculate the total amount of money being spent by litigants just to attend court hearings. Even on this conservative basis, the amount is Rs 30,000 crores per year! It is a staggering amount by any yardstick. Even more unfortunate is the fact that litigants with an annual family income of less than 1 lakh per annum spent 25 per cent of their earnings in attending court hearings, other than on legal fees, in a year. Perhaps this is the reason that 33 per cent of the civil litigants interviewed by our survey attested to using alternate means of dispute resolution before approaching the courts — having approached family elders, village or caste panchayats, or the police to settle matters before going to court.

We also asked about loss from taking time off from work, loss of wages, and business losses. This was on average Rs 873 per litigant. Using the same methodology as mentioned before, we computed the productivity loss, and the number is a staggering Rs 50,387 crores per year! As a national cost, it amounts to 0.48 per cent of India’s GDP.

Despite a substantial number of litigants being poorly educated and from lower income groups, only 2.36 per cent of all litigants were seen to be using court-appointed lawyers. According the National Legal Services Authority Act, 1987, individuals from scheduled caste (SC) and scheduled tribe (ST) communities, women, and persons with an annual income of less than Rs 30,000 per annum are eligible for free legal services, including the services of lawyers for those accused in criminal cases, and the waiver of legal fees for civil disputes (see, http://ecourts.gov.in/sonipat/free-legal-aid). It can be estimated that a significant proportion of litigants with an annual family income of less than 1 lakh per annum would qualify for legal aid paradigm and require institutional support. In page

140particular, since 15 per cent of the litigant body is made up of women, 3.2 per cent from ST communities, and 11 per cent from SC communities, it is disheartening to note that such a meagre number of individuals were given court-appointed legal services. Clearly, there is a need to increase legal literacy measures.

Of the survey respondents involved in criminal matters, 56 per cent were accused. Of these, 53 per cent reported an annual family income of less than Rs 1 lakh and 22 per cent were uneducated or had studied up to the primary-school level. These respondents were primarily self-employed (13 per cent), working in agriculture (27 per cent), or labourers (18 per cent). Sixty-two per cent of these litigants were other backward castes (OBCs), SCs, and STs across religions. Ninety-five per cent of the respondents who were accused in criminal matters had not been accused in any other case previously.

The survey also asked questions about the dark secret of our criminal justice system: under-trial prisoners spending more time in prison than the prescribed punishment for their alleged offence. About 21 per cent of the accused declared that they had spent more time in jail than the prescribed punishment, and 31 per cent of individuals accused of bailable offences claimed that they continue to be in jail as they do not have the means to afford the bail or guarantors to stand surety. Both these figures are shocking, even providing for margins of error and misplaced perceptions. The judiciary is not solely responsible for the entire criminal justice system, nevertheless these numbers are a sad reflection of the state of affairs.

Our surveyors also found that 10 per cent of all accused were brought to the court premises in handcuffs. The Supreme Court has consistently held since 1978 that prisoners should not be handcuffed, as it is at first sight a violation of their human rights. Nearly 40 years later, the Supreme Court’s order continues to be violated.

The survey also asked about what litigants are fighting about. Nearly 66 per cent of respondents involved in civil cases said that their disputes were about land and property — whether landholdings, titles, compensation, or inheritance. This is an astonishing statistic (although not according to many lawyers). While it raises interesting issues about our society, disputes among people, awareness of civil rights, and how breaches of rights are being resolved, the primary conclusion is the urgent need for land law reforms. Land laws in the country are chaotic, a combination of title laws promulgated by the British and revenue procedures going all the way back to the 18th century. The judiciary is unfortunately the institution where this enormous mess has come home to roost. The parliament and executive need to take note of the seriousness of this issue and initiate land law reforms on a priority basis. Unless such reforms take place, it is unlikely that the number of land-related cases in the country will come down. And unless these cases are tackled, it is unlikely that the delays in civil litigation will reduce.

Women constituted only 15 per cent of all survey respondents, which raises the questions about the ease with which women (compared to men) can access the legal justice machinery. Of the women respondents surveyed, 14 per cent were victims of crimes, out of whom, 70 per cent had an annual family income of less than Rs 1 lakh, and were page

141less educated than those with an annual family income of Rs 1–3 lakhs. Of survey respondents who were accused in criminal matters 5 per cent were women, and 57 per cent of them were women with an annual income of less than Rs 1 lakh, and 34 per cent were either uneducated or schooled up to the primary level, and engaged in agriculture, labour, private service, or as homemakers. Of the women who had an annual family income of Rs 1–3 lakhs, education levels were seen to vary between class 10 and undergraduate degrees. Women, like men, are seen to be predominantly involved in land and property disputes, with up to 57 per cent of civil disputes involving women and being about land and property matters.

An important finding is that individuals with an annual family income of Rs 3 lakhs and below form 90 per cent of the litigant body. Likewise, litigants with undergraduate degrees constitute 14 per cent of the litigant body, and those with postgraduate education were only 0.6 per cent of the litigant body. Of those individuals who had a degree and/or postgraduate education, 17 per cent were initiators of legal battles in the court, across civil and criminal matters. Since the relatively affluent and well-educated appear to be a much smaller proportion of litigants than those from more backward economic categories with lesser education, it raises question about whether these groups are being able to bypass the legal system in the resolution of their disputes.

Another significant finding from the survey is that the plaintiffs and defendants in civil cases are generally from similar socio-economic backgrounds. Similarly, in criminal matters, the accused and the victims are also from the same or similar socio-economic strata. Socio-economic strata include caste and religion. We found that 61 per cent of land litigation is between the same caste groups, and 69 per cent between the same religious groups. This finding reveals that similar categories of individuals who bring no visible external leverage of social or economic privilege against each other go to court to resolve their disputes. Of course, we are assuming for the purpose of our study that litigation is aimed at genuinely redressing disputes, rather than a mechanism to merely enforce power or hold off resolution which could be the case in many circumstances.

Citizens continue to approach courts regularly, as the survey shows, despite the many problems they experience. To repay the faith citizens repose in the judiciary, it is important that the state (judiciary, legislature, and executive) takes on board the views of the citizens and implement steps to ensure that the justice system serves the judiciary better. Experiences from other countries show that positive responses from the state, including the judiciary, to citizens’ views has resulted in an efficient judiciary and increased citizens’ trust in the judiciary. The Indian state needs to step up.