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).
Excellent initiative by a voluntary organization. Wish you good luck, unless you drive this with all determination it does not reach a logical end. Gradually, you should come out with revealing facts, so that the needful would be done by the empowered bodies (Politicians, Executive, Judiciary). Once you progress well, the public will be interested in this topic, then media becomes helpful to you.
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