Wednesday, 11 February 2015

The Inauguration of the Rule of Law Project

The launch of the Rule of Law Project and website by DAKSH at Bhartiya Vidya Bhawan on Saturday, 7 February, 2015, was a gathering of well-wishers, members from the legal community, researchers, and citizens concerned with governance. The Rule of Law Project at DAKSH studies pendency and backlog of cases in the courts in India.

The launch was inaugurated by Professor Rajeev Gowda (Member of Parliament), Mr. S. S. Naganand (Senior Counsel) and Mr. Shri Kumar (ex-DGP of Karnataka and former Commissioner of the Central Vigilance Commission).

The introduction by Mr. Harish Narasappa, co-founder of DAKSH, spoke of how for the group at DAKSH, this endeavour was an effort born of concern with the maintenance of the ideal of rule of law and experience with the legal system. The Rule of Law Project is composed of an interdisciplinary group of social scientists, data analysts, and lawyers, and hopes to bring together a citizen-centred approach to the understanding of the problem of delays in the courts. DAKSH is concerned with the effects of delay in the courts on the common citizen of the country and is producing a database built from publicly available information from the courts themselves. DAKSH has currently collated data from six High Courts: Karnataka, Hyderabad, Delhi, Madras, Gujarat, and Orissa. The project over the next twelve months will cover all 24 High Courts, the Supreme Court, and five randomly selected District Courts, that will be available on the website. Mr. Narasappa spoke of the need to create a scientifically maintained database that would yield a closer and sustainable understanding of the problem of pendency. In addition to the database, DAKSH will also work on a series of human interest stories of the socio - economic effects of judicial delay, in consultation with other members of civil society.

Professor Rajeev Gowda spoke of the extensive work done by DAKSH in the last few years on voters’ perception and the performance of MLAs and MPs, and the value of this work towards creating a deeper understanding of the voters’ needs and responses. He also spoke of the value of linking of DAKSH’s research with newspapers such as The Times of India and Vijay Karnataka, allowing for stimulating debate and discussion in the public domain on what the common citizen hopes for from their elected representatives. In light of this, Professor Gowda spoke of the necessity of the Rule of Law Project that would also allow for debate on systems of governance and the ideal of the rule of law that upholds justice in India. He spoke of how this data based approach to pendency is novel and can have very positive consequences.

Mr. Kishore Mandyam, co - founder of DAKSH, spoke of his interest in the project as arising out of a concern for the common citizen for whom delay in the courts is not only a matter of legal concern but a social one. He analysed the data set produced by DAKSH, spanning two months of data from six High Courts, and revealed that different courts have different systems of data management. He said that it was tantamount that this data on cases that are in process in the legal system be made better available. For example, the High Court of Karnataka had a superbly maintained data base that was user friendly, while other courts did not have very basic information that are important for an understanding of delay, such as the date of institution for different cases. He provided a series of analytics on the numbers of cases in different High Courts, and figures of average pendency and backlogs.

Mr. Naganand spoke of the quality of judges in the Indian legal system, and maintained that he felt that while the data would assist in improving the primary problem of pendency and spur people into action, it was important for DAKSH to expand the breadth of its research. He said a look at the commonly recognised problems of the judiciary would be a necessary addendum to the Rule of Law Project.

Mr. Srikumar spoke of his experiences as DGP and felt that the data would help in increasing visibility of this problem to the public and would push the administration into taking action. He offered his assistance to the project and expressed his sense that it was important to have a sense of the processes that precede the legal system, for example the work of the police, and the life cycles of cases before they arrive in the courts. He expressed solidarity with this project and said that delay needs to be solved by this generation and not spread to the next.

Mr. Narasappa concluded that the DAKSH Rule of Law Project was eager to expand their approach and methodology and looked forward to the coming year in which further data would be released and analytic reports produced, in the public domain. The programme ended with a vote of thanks from Mr. Narasappa urged the legal and social scientific community to lend the team their inputs and support.

Tuesday, 10 February 2015

The State of Judicial Statistics in India

Guest Post by Aparna Chandra
There is a consensus in popular and expert opinion that the Indian judicial system is facing a crisis. As evidence of the problems with the system, court watchers point to the endemic delays in the system, its inefficient and expensive processes, its hyper-technical nature, its capture by special interests - particularly lawyers, and the exclusion of marginalized and vulnerable groups from access to the judicial system as well as to just outcomes from it. Depending on who is asked, the causes of the crises include incompetent judges, a sluggish judicial administration, ineffective and/or unethical lawyers, conniving litigants, and an unconcerned or conspiratorial state that keeps the system under-resourced and over-burdened so that the judiciary cannot fulfil its objective of bringing about social transformation through law.
To combat the perceived problems with the system, many judicial reform proposals have been initiated or proposed. Much of the reform effort is targeted towards combating delays, including through reducing “pendency” by increasing judicial resources and infrastructure, or diverting cases from the system through increased use of ADR, plea bargaining, creations of tribunals, gram nyayalayas, etc.
However, much of the policy making in the area of judicial reform has been taking place without any systematic study of the actual operation of the judicial system. Instead of research and evidence led policy making, ad hoc and impressionistic accounts of the judicial system and the personal evaluations of the policy makers as to the functioning of the judiciary, have become the basis for judicial reform.
Take for example, the efforts to reduce delays in the judicial process. While there is consensus in policy making circles that cases in the judicial system are severely delayed, we have no benchmarks for when a case can be considered delayed, what types of cases are delayed, to what extent, in which courts, and for what reasons. In the absence of these data, policy makers either create ad hoc benchmarks (e.g., all criminal cases over 2 years are to be considered delayed), or use the pendency of cases as a substitute to demonstrate and estimate the extent of delays in the system. However, pendency only refers to the number of cases that have been instituted but have not been disposed of. A pending case indicates a problem only if the system is unable to clear that case within a particular timeframe. Without a benchmark of when cases of different sorts should be considered delayed, and with no information in the public domain of how old cases in the system actually are, which stages of the process they are stuck in, and for what reason, any delay reduction effort merely devolves into attempts to reduce pendency by efforts to divert cases from the judicial system, to add more judges who can then dispose of more cases and thus reduce pendency, or by incentivising “disposal” of cases by judicial officers. Little effort is made to understand why cases are delayed in the first place, and what steps may be taken to address the issue. This focus on disposal, without addressing bottlenecks and stress points in the process, compromises the ability of the system to deliver quality justice. 
Similarly, policy makers rarely study whether the system is able to meet its justice delivery objectives for litigants across the socio-economic spectrum; and if not, the causes for this failure. In particular, no account exists of the social identity of litigants approaching the courts, the nature of claims being made by them, the kinds of relief being sought, and the system’s ability to deliver timely justice according to law to these various groups. So also, there is little research on the impact of judicial reform efforts, especially diversion mechanisms like plea bargaining, on the ability of the system to deliver justice to the most vulnerable groups.
Even where attempts have been made to engage in research led policy making, the efforts have been hindered by the lack of data, let alone, quality data on the Indian judicial system.  Researchers have had to resort to using “the hodgepodge of data that is either publicly available or that can be acquired from the Supreme Court” [Nicholas Robinson, A Quantitative Analysis of the Indian Supreme Court’s Workload, 10 Journal of Empirical Legal Studies 570 (2013)]. However, apart from broad numbers on institutions, disposals and pendency of cases before courts, very little data about the judicial system is collected and put into the public domain.
Even where data is available (or is made available), poor documentation practices call into question the accuracy of the data provided. The Law Commission, in its 245th Report for example, lamented on the quality of data provided by High Courts regarding the institution, disposal and pendency of cases, and pointed to instances of prima facie wrong data being provided by High Courts to the Commission for a report being prepared on the directions of the Supreme Court. This indicates that access to reliable data is difficult even within the system itself.
Further, a lack of uniform data collection methods across the country compounds the problem of lack of quality data. Different states count institutions, disposals and pendencies differently. Some include bail, interlocutory applications, committal proceedings and even traffic challans into their calculations. Others do not. Similarly, different states have different practices of categorizing cases. Since local practices vary, understandably some data cannot be computed in a uniform manner and it is no one’s case that diversity should be eschewed and uniformity adopted only for the sake of uniformity. Further, preserving High Court autonomy and administrative control over subordinate courts within their jurisdiction has its own advantages. However, little conversation has taken place in judicial circles on evolving national level uniform data collection practices, to the extent possible, in keeping with the need to be respectful of local diversity and autonomy.
The multiplicity of approaches in data gathering prevents national level analysis of issues plaguing the system, as well as cross-comparisons and experience-sharing across high courts in a methodologically rigorous manner. The almost complete absence of sound data collection practices is most prominent in states where data gathering practices vary from district to district. In such cases, even intra-state consistencies and disparities cannot be properly evaluated.
Of course, consistency in data collection practices is meaningless unless the data is collected in a methodologically sound manner. In many states, for example, Madhya Pradesh, data is primarily gathered for purposes of performance evaluation of judges. Judges are required to dispose of a certain quota of matters per month for which they are awarded “units”. Different types of matters are allotted different units and at the end of month the total number of units completed by a judge is collated. In order to do this calculation, the court staff maintains a record of how many matters were instituted and disposed of by a judge in the previous month. Periodically this information is sent to the High Court which aggregates the data from all the lower courts and thus generates figures regarding the institution, disposal and pendency of cases. However, each matter for which units are awarded does not necessarily represent a “case.” For example, a bail matter has certain units allotted to it. Therefore, the disposal of a bail matter is counted as one disposal in some high courts. Of course, one “case” may see multiple bail applications being instituted and disposed of, without the case itself being disposed of on merits. Therefore, a single case is counted multiple times in some High Courts. It has become common wisdom within legal circles to talk about 3 crore cases pending in the system. The truth of the matter is that we just do not know how many cases are actually pending in the system. As the Law Commission found in its 245th report, the actual number is likely to be “significantly smaller” than the numbers provided by the courts would suggest.
The judicial system exercises immense public power and is mandated with a vital constitutional responsibilities. However, due to the lack of transparency in the functioning of the system, the absence of a culture of openness and willingness to engage with civil society, academics and other stakeholders, and near absolute lack of quality statistics on the functioning of the system, the judiciary escapes accountability. At the same time serious reform efforts are stymied because of the lack of information about the working of the system. Reform then is based on anecdotal evidence and the experiences, ideologies, worldviews, and proclivities of individual policy makers. Putting in place mechanisms for rigorous data collection and management within the judicial system, and the generation of sound and accurate judicial statistics has to be the first step towards both holding the system to account for its exercise of public power, as well as to reform the system and equip it to fulfil its constitutional obligations. 

[Dr. Aparna Chandra, Assistant Professor and Research Director, Centre for Constitutional Law, Policy and Governance, National Law University, Delhi. This analysis is based on her experience working with the Law Commission of India on its 245th report, and on field work undertaken in Madhya Pradesh in 2013 on the functioning of the criminal justice system).