Tuesday 23 December 2014

“…the case went on for years and years and years”*

Just last week, the mother of all delayed cases – the Disproportionate Assets Case against former Tamil Nadu Chief Minister Jayalalithaa, under the Prevention of Corruption Act – has come to a head. Jayalalithaa was in the Supreme Court yesterday, which has deemed the necessity of a swift judicial process in the hearing of her appeals. An exclusive Special Bench will be constituted to address her defence, in the Karnataka High Court, with daily hearings scheduled to finish within three months.

The story of Jayalalitha- the 800 kg of silver, the 28 kg of gold and the 750 notorious shoes, has become the stuff of common parlance for what signifies corruption. In nearly two decades, the corrupting figure of Rs. 66.65 crores – crumbs in the broad expanse of corruption in the legislature – has been featured endlessly in the media.

It is, however, a true case of missing the wood for the trees.

An eighteen year old case, this judicial saga has seen a remarkable trajectory that serves to highlight one of the primary ailments of the Indian judiciary: delay.

For us at DAKSH, the question that is far more pressing is, has justice been done by the recent verdict in the Jayalalithaa case? It is true that this is a rare case of a Chief Minister being brought to justice by the judiciary, demonstrating the independence and possibility of the precept of “nobody above the law” encoded into our Constitution. However, is it justice if it takes eighteen years to deliver it?

Earlier this month, Chief Justice of India H.L. Dattu expressed concern over the high numbers of pendency in the Indian courts, as one of the biggest hurdles for the dispensation of justice in the country. On the same day, litigants who have seen 1500-1900 dates in court, formed a human chain to stage a protest outside the Delhi High Court, with the one statement that "We only want justice not delay." Justice A.P. Shah famously remarked in 2011 that it would take the court up to 466 years to clear the backlog in just the Delhi courts.

The problem of pendency -- all cases instituted but not disposed of, regardless of when the case was instituted in the courts -- we have found, is a much studied one, accompanied as it is with a widely held common sense that sees the judiciary as several steps behind its potential in being unable to deliver timely justice. “Justice hurried is justice buried” and “Justice delayed is justice denied”: commonly understood maxims that tell us that the quality of justice is very much dependent on the time taken to deliver it.

DAKSH’s new work, The Rule of Law project , looks at this problem of pendency and backlog in the Indian legal system. As a group of lawyers, sociologist and data analysts, we are excited to bring together a different register of critical energies to understand this problem.

Our first question at the outset of our study has been, what data do we begin to work with? What is pendency, and how do we begin to address it in our research?

We begin our pursuit of this study with a very preliminary and layperson’s perspective of the legal system. The legal system exists to ensure that in case of the violation of this personal freedom, or if a citizen has violated the legal code of our country, justice is meted out in a qualitative manner in accordance with the legal spirit of the country.

While we live in a country with a vast and sprawling network of well-ordered judicial institutions, these systems are densely congested with cases that they are unable to see through in a timely fashion. To put it more simply, while there exists a dynamic and extensive judiciary, the numbers of cases lodged in the system that have not yet seen the light of day, remain an immense challenge to the quality and delivery of justice.

As preliminary leg work for our project, our team has carried out an extensive review of literature to understand why this is the case. What does “delay” in the courts really mean? How do we quantify pendency, and what amount of time is too much, when a case is in process? Can there be a predetermined mandate for how long the resolution of a single case ought to take in a court?

It is with these questions that we have come to understand at DAKSH that a simple number, statistic, or even prescription cannot hold much value in looking at this problem.

We understand from the literature made available by the Supreme Court itself in Court News, that there are 64, 330 cases of pendency in the Supreme Court, 44,56,232 in the High Courts, and 2,68,39,256 in the District and Subordinate Courts, as of 31-12-2012. What do these numbers indicate? If each case in this system has been in the system for only six months since its admission, the number appears less daunting; however, if these cases have been in the system for years, they indicate a wholly different tendency.

So, what is the tendency of pendency? In a country where the judiciary can vary across different states, where the profile of litigants and cultures of litigation differ, what common index can help us understand the difference in what backlogs indicate for different contexts?

In response to various studies that have studied the problem of pendency, DAKSH has undertaken the quantitative task of collating and collecting primary data that is made publicly available by the courts themselves, to allow for further public debate and research that will hopefully be able to throw light on the specificities thrown up by this issue.

It has been seen that it is crucial to produce reliable statistics of the kinds of delay in the various courts in India. Official statistics do exist, but it is not entirely clear what these numbers indicate. More cases are registered in the courts than are resolved, and the movement of disposals in a responsive and qualitative manner will depend, in the future, on a management of pendency within the courts.

Our work at The Rule of Law project is to collect and collate data on the High Courts in the country at an all-Indian level that can be used by researchers, lawyers, even the courts, to study the systems of litigation in our country. As a starting point, The Rule of Law project is collecting primary data from the daily cause list that provides a detailed profile of cases, from different High Courts in the country. Over the course of the coming year, we will be collecting this data for all 24 High Courts and the Supreme Court.

Stay tuned for upcoming blogposts where we will tell you more about our method, which has involved a lot of minute work understanding the courts, and we will present a series of reflections and experiences in collating and organising our data, and the challenges they pose to the study of delays at the court in our country.

*  The blog title is taken from Chief Justice of India H. L. Dattu's comment in the Supreme Court, can be found here: <http://www.thehindu.com/news/national/as-it-happened-a-minutebyminute-account-of-jayalalithaa-bail-hearing/article6510700.ece>