Legal Numbers

This is Part I of a three part blog post:

Numbers. You wouldn’t think that we lawyers have much to do with them. You’d be surprised. As an Indian lawyer, I can safely say there is a string of numbers drilled so deep into my brain, I couldn’t forget them if I tried. They are an odd jumble of facts and figures. Sometimes they are years, for instance 1872 – the year the Indian Contract Act came into existence. Here and there, they are section numbers, such as 300 – the provision under the Indian Penal Code that defines the offense of murder. Yet other times they are a number of judges, for example 13 – the largest ever bench of judges constituted by the Supreme Court of India to hear the landmark case of Kesavananda Bharati v. State of Kerala[1]. But all of these numbers pale in comparison to a certain string, which takes pride of place in our legal system – 14, 19, 21 and 32.

Let me give you some background and do a quick translation from legalese. The most fundamental governing document which lays down the supreme law of our land is a lengthy text we call the Constitution. The Constitution of India does a whole bunch of things –it provides for us to have a parliamentary form of government, it establishes the structures, functions, powers and procedures of the government and its bodies and very importantly, it defines the fundamental rights and duties of the citizens. The Constitution of India is a heap of numbers in itself. It is made up of 448 articles (labelled 1-395) in 25 parts (labelled 1-22), 12 schedules, 5 appendices and 98 amendments.

Coming back to that string of numbers I mentioned a paragraph ago – 14, 19, 21 and 32. These are fundamental rights, specifically some of the most vital of fundamental rights that are guaranteed to us citizens by the constitution. Article 14 gives us the right to equality, Article 19 provides us the right to freedom and Article 21 ensures right to life and personal liberty.  There are other fundamental rights as well – covering the right against exploitation, the right to freedom of religion and cultural and educational rights of minority communities. As for Article 32, it is a legal behemoth, the mother of them all. It was this article that Dr. B.R. Ambedkar referred to as the “the very soul of the constitution and the very heart of it”. When the chief architect of the constitution says this, you know you’re dealing with a big one.

So what does Article 32 confer on us? It provides the right to constitutional remedies. Basically, it is this article that empowers the citizens to approach a court of law in case any of their other fundamental rights are violated. Article 32 is a tree of life of sorts for the other fundamental rights, meaning without the right to constitutional remedies, none of the other fundamental rights are enforceable.

When a person approaches a court claiming his or her fundamental rights have been violated, if the court finds that the fundamental right has been breached, they can issue an order to enforce the right. This order, which is issued by the Supreme Court under Article 32 and the High Courts under Article 226 of our constitution, is called a writ.

While that brings us to the end of our brief constitutional lesson for today, we are nowhere close to done with writs. We’ve found a fair number of writs in our database, and trying to analyse them has been a loopy ride to say the least. In next week’s post I’ll be breaking down the different kinds of writs and showing you some writ related data that we have in the DAKSH database.

See you then!

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[1] AIR 1973 SC 1461

Making Bricks Without Clay: The Difficulties with Obtaining Data in Studying Indian courts

Guest Post by Alok Prasanna Kumar

“Data! data! data!...I can't make bricks without clay.”

- Sherlock Holmes in Arthur Conan Doyle’s, The Adventure of the Copper Beeches

In the Bible, when Moses and Aaron demand that the Pharoah free the Jewish people living in Egypt, Pharaoh not only refuses but imposes a cruel and perverse rule upon the Jewish workers: they must now meet their daily output of bricks without the daily supply of straw (a key binding agent for bricks) by the Egyptian rulers.

Trying to undertake an empirical study of the functioning of courts in India with the present quality of data on cases often leaves one quoting Sherlock Holmes in frustration!

While there is no denying the independence and the ability within the Indian judicial system, there are multiple problems with the functioning of the Indian judiciary, not the least of which are the problems of delay and a large backlog of cases. This is actually a paradoxical state of affairs since the number of cases actually being filed per million population, is actually fewer than other nations. In fact, it is hypothesized that the prospect of delay and pendency may in fact be deterring people from approaching the system for dispute resolution over the years.

Much of the basis for debate about the issue of delay and backlog of cases is either purely anecdotal or based on a single data point which looks at all the cases pending in the country at a given moment without any breakup of type or context (the most recently quoted figure being “three crore cases”). One much quoted study for the failure of India’s judicial system, the “enforcement of contracts” section of the World Bank’s Doing Business Report relies only on the number of procedures and the number of days it takes to get a civil dispute resolves in a commercial court in Mumbai. While it may make sense in the context of comparing similar cities in other countries in the world, it does not provide us anything like an accurate picture of the state of the judiciary in India.

Part of the difficulty in studying the Indian judiciary comprehensively lies in obtaining reliable data about the judiciary in India. At the most basic level, we have the Supreme Court’s “Court News” publication which is published quarterly (though delayed by several months) which lists out the number of cases filed, disposed and pending in High Courts and District Courts across the country, apart from the numbers of judges in the country. However, the Supreme Court does not vouch for the reliability of the data since the same is compiled on the basis of the data sent to it by the High Courts and there is no verification and cross checking.

Even this data raises some questions: What is a “case” for the purposes of the statistics put out by the Court News publications? Is it one petition? Is it one application? Is it the sum total of all applications and petitions in a given dispute between parties? Are multiple petitions filed by different parties to the same dispute considered as one case or multiple cases?

While presenting the data, there is no clarity as to what the Supreme Court’s publication means when it comes to calling something a case. In the absence of such clarity, we realise that any study across courts is meaningless as the Law Commission concluded in its 245th Report given the wide variance between district courts on what counts as a “case”.

Even while looking at the data from one forum, sometimes the data can be misleading because of the idiosyncratic way in which records are being maintained. Nick Robinson for instance finds that the Supreme Court’s numbers on cases filed and disposed don’t actually reflect the case-load since some cases are “double-counted” and the numbers need to be reduced somewhat arbitrarily to take this into account.

As Daksh’s own research has also shown, the bewildering diversity of maintaining records across High Courts and District Courts, in the manner in which they classify cases based on subject matter makes comparisons and studies that much harder in all but a very limited set of cases.

Such complication seems needless; High Courts exercise a very limited number of jurisdictions: Appeals, Civil Suits (in only 5 HCs), Contempt, Petitions (those seeking Writs or other remedies), Reference, and Revision. While each of these broad categories can be subdivided into many further categories and subcategories, based on subject matter, a system of categorising cases that follows this hierarchy and presents it to researchers and users would go a long way in helping understand the functioning of the High Courts.

Any serious effort at judicial reform in Indian must start therefore with establishing common norms for data collection and record keeping across the nation. This requires top level thinking and leadership within the judiciary. What is needed therefore is a detailed set of instructions on how to classify cases, how to maintain records, what information pertaining to petitions filed must be maintained and how to present such information. This will help the judiciary itself understand where the problems are arising within the system and what sort of fixes are needed. In this task, uniformity across High Courts and across District Courts as far as possible must be one of the primary aims along with comprehensiveness and coherence.

The larger point is this: any systematic, empirical study of the Indian judiciary will prove to be futile or frustrating as the data available is either not complete or reliable. Any edifice of reforms built on these “bricks” will fall apart very quickly.

 

Alok leads the judicial reform vertical at Vidhi. He graduated from the National Academy for Legal Studies and Research (NALSAR) University of Law in 2008. He obtained the Bachelor in Civil Law (BCL) from the University of Oxford in 2009 in the subjects of Competition Law, Jurisprudence, Regulation and Socio-economic Rights. Between September, 2009 and November, 2013 he has practised as a Junior Advocate in the chambers of Additional Solicitor General and later, from February 2013, Solicitor General of India, Mr Mohan Parasaran. He is part of the founding team of Senior Resident Fellows at Vidhi.

Land and the courts

I read today that months and months after unsuccessful attempts by the ruling party in the Parliament to push the ordinance on the land acquisition act, the Prime Minister has announced that it will be dropped. 

It has been eight months of back and forth between the ruling party and the Opposition, the Lok Sabha and the Rajya Sabha, paralleled by raging media debate and public conversation. The content of the ordinance and its necessity have been widely discussed by the affected parties and people’s movements.

During this time, I began to think about how land actually fares in the judiciary. At what point does the contention around land enter the judicial arena, and on what premises?

What we began to do was look at our database which contains case records for 10 High Courts and 274 District Courts, for cases that were directly related to land acquisition. Several courts detail, against a case number, the Central or State statute under which the case is in process. While this detail is mostly unavailable in High Courts, it is often available in District Court data.

We ran a report for all cases that had 'Acts' specified against their records. Of 14,32,658 cases from ten High Courts and 274 district courts, we found that 98 districts listed up to 279 Acts (a mixture of state and central statutes).

Of these, 4885 cases dealt with land acquisition, across 10 states and 23 districts. The table below lists the districts, along with basic census data about the district, where land acquisition cases are being fought. As one part of this information, we list a demographic or economic feature of the district, to try and understand if there is a correlation between mines, forests, industry and land acquisition. This is a limited analysis, more by way of an exploration.

State and District	Cases	Population	Growth	Sex Ratio	Literacy	Further Details
Andhra Pradesh	41
Anantapur	1	4081148	12.10%	977	63.57	26% of population in agriculture
Chittoor	25	4174064	11.43%	997	71.53	Agricultural marketplace
East Godavari	1	5154296	5.16%	1006	70.99	Scheduled Area
Guntur	2	4887813	9.47%	1003	67.4	Notably business, industry, and agriculture
Hyderabad	11	3943323	2.97%	954	83.25
Kadapa	1	N/A	N/A	N/A	N/A	2664 mining industries in Kadapa according to government records in 2011-12
Himachal Pradesh	8
Kangra	3	1510075	12.77%	1012	85.67	Most populous District  in HP
Shimla	2	814010	12.67%	915	83.64	State Legislature and and tourism
Sirmaur	3	529855	15.54%	918	78.8	Mountainous and rural
Jharkhand	5	2684487	11.99%	909	74.52
Dhanbad_	1	2684487	11.99%	909	74.52	Coal rich area with mining
Giridih	2	2445474	28.41%	944	63.14	Coal rich area with mining
Lohardaga	2	461790	26.68%	985	67.61	Scheduled Area
Karnataka	3658
Gadag	99	1,064,570	9.54%	982	75.12	Many educational institutes
Kalaburagi	3559	2,566,326	18.01%	971	64.85	Most backward talukas in Karnatka
Maharashtra	143
Buldhana	55	N/A	N/A	N/A	N/A	Mountainous ; small scale-industries
Mumbai CMM	88	3085411	-7.57%	832	89.21	Wealthiest city in India
Manipur	3
Tamenglong	3	140651	26.15%	943	70.05	Predominantly ST population; tropical evergreen forests
Odisha	688
Jajpur	688	N/A	N/A	N/A	N/A	Agriculture and mining
Telangana	10
Mahbubnagar	1	4053028	15.34%	977	55.04	Scheduled Area
Nalgonda	8	3488809	7.41%	983	64.2	Cement Industries
Warangal	1	3512576	8.21%	997	65.11	Rapid urbanisation; primarily agricultural
Tripura	324
North Tripura	324	693947	17.44%	967	87.5	Predominantly rural and ST population
West Bengal	5
Burdwan	5	N/A	N/A	N/A	N/A	N/A
Grand Total	4885

Source: Daksh Database, August 2015 and District Census 2011

Note: Case counts for cases listed against land acquisition matters. Of 14,32,558 cases in our database from 10 High Courts and 274 District Courts, as of August 4, 2015

The following table below lists all the Acts to do with Land Acquisition that show up in our database. As you can see, there is a lack of standardisation, and several spelling mistakes. A lot of the time, what is listed is just ‘Land Acquisition Act’. Without the date of filing of a case, it would be impossible to tell if this was a case dealing with the rules of 1894 or one from much later. For this, we will need to do further analysis.

Acts

410.18.of LA ACT

415.18 OF LA Act

APPLICATION U SEC 18. 3 B OF L.A. ACT

APPLICATION U/S 18 3 b OF LAND ACQUISITION ACT

APPLICATION U/S 18. 3 b OF LAND ACQUISITION ACT

APPLICATION UNDER 18.3.B.OF LAND ACOUISITION ACT

Land Aquisition Act

Petition U Sec 18 3 B of Land Acquisition Act

U/S 18 of LA Act

U/Sec 30 and 31 of LA Act

U/Sec.18 of 1 , L.A.Act

U/Sec.18 of 1 , L.A.Act 1894

U/Sec.18.3.,.b. of L.A.Act

U/Sec.30 of L.A. Act

U/s. 18 of Land Acquisition Act

U/s 18, 1, of L.A Act.

U/s 18, 3, B of L.A Act.

U/s. 18 .3. of L.A.Act

U/s. 18 of LA. Act

LAND ACQUISITION (A.P. AMENDMENT) ACT, 1953

Land Acquisition (Amendment and Validation) Act

Land Acquisition (Mines) Act

Land Acquisition Act

Lan Acquisition(Bihar Amendment) Act

Land Acquisition(Bihar Amendment) Act

Land Acquisition (Amendment) Act

Source: Daksh Database, August 2015

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We also tried our hand at another analysis from our High Court data last month. As mentioned earlier, only some High Courts list the Acts a case is registered under. We needed to think through other ways we could look at cases that dealt with land acquisition.

We ran a query for all cases that contained the field ‘Special Land Acquisition Officer’ and ‘LA’ (land acquisition). All cases that are to do with land acquisition are usually filed against the government, who as respondent is known to be listed as ‘Special Land Acquisition Officer’ or a variation thereof.

As per our query looking for ‘Special Land Acquisition Officer’, we found 2391 cases in our database of 5,87,020 cases, from the High Courts of Gujarat, Karnataka and Orissa as of July 2015. These cases ranged across 52 districts in the three states. Of these, 818 cases have been disposed between January to May 2015. All cases were filed between 2005 and 2015, with an exception of a case from 1996 from Karnataka. 

Most cases we are looking at typically involve the following legal categories: railways, highways, town and urban planning, the Waqf board, and industrial development.

Most cases were a range of First Appeals from lower courts, Miscellaneous First Appeals, Civil Appeals and Applications, Miscellaneous Second Appeals and Writ Petitions.

Category	Count of Cases
Civil Procedure Code	118
Constitution of India	7
Contempt of Courts Act, 1971   2	7
Land Acquisition Act, 1894	375
Industrial Disputes Act, 1947	1
Land Acquisition (Bombay Amendment) Acts	1
Limitation Act, 1963	20
Railways Act, 1890	2
PIL/ Any other misc. matters	1
Ex	4
GM (CPC)	20
GM (RES)	1
GM (Wakf)	1
INJ	1
IO	2
LA	126
LA (BDA)	8
LA (KHB)	5
LA (KIADB)	42
LA (RES)	137
LA (UDA)	5
LAC	1232
LR	1
MV	3
National Highways Act, 1956	1
PAR	1
Prevention of Anti
RES	4
RO	1
S(RES)	1
Bombay Land Revenue Code, 1879	1
Gujarat Town Planning and Urban Development Act, 1976	1
Industries (Development and Registration) Act, 1951	1
33 Categories	2131 Cases

Source: Daksh database, July 2015

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Many of the laws in our country are inherited from a colonial legal framework.  At the time of Independence, the framers of the Constitution had to consider how to create a liberal and socioeconomic order that left behind its colonial legacy.

One of the major considerations to be made to this effect was that of property. Laws related to land looked at the individual's right to hold and acquire property, while simultaneously thinking of socialist economic projects to do with industrialisation and calls for the redistribution of land. All land acquired for any projects had to be under the rubric of 'public purpose', which needed to be qualified and offer a carefully crafted compensation for the dispossessed party. 

While the Right to Property was originally deemed a Fundamental Right in 1950, the 44^th Constitutional Amendment in 1978 changed this, to make it a constitutional right. “The abolition of the fundamental right to property by the 44th Constitutional Amendment in 1978, the balance tilted considerably in favour of the administrative state, as judicial review of land acquisition under the 1894 act became extremely lenient”[1]

The Land Acquisition Act was a relic of the colonial period, in fact a piece of legislation from 1894. While the Act mandated compensation for the acquisition of land, it had no provision for the resettlement or rehabilitation of the parties’ dispossessed by the procurement of land. Amendments to this Act have been made over the last decades, to reconsider the meaning of 'public purpose', to include social impact assessments and recalibrate the value of compensation. 

One of the main concerns for this particular article is what manner of cases enter the courts that are to do with land acquisition. Primarily, we note that the feature of the consent of the parties whose land is being acquired is mostly not justiciable, falling under the idea of ‘eminent domain’ in which “the power of the sovereign to take property for public use without the owner’s consent. The meaning of the power in its irreducible terms is: (a) power to take, (b) without the owner’s consent, and (c) for the public use”. [2]

Eminent domain also pertains to the taking over private land that is not within the control of the state. 

Parties who hold land-titles can question the acquisition of land after a notification made by the state, within thirty days. All objections are then gathered and if acceded to, enter into the civil courts of tribunals. However, in most cases, eminent domain grants the sovereign (the state) the possibility of taking private property for public use without question. Parties can go to the courts to seek compensation, when delayed or debated.

What cases appear in the court pertaining to land acquisition tends to be related to the extent and quantity of compensation mandated, and whether or not the compensation is granted. As stated by the Land Acquistion Act of 1894, which was in operation until 2013, “But the Court shall not take into consideration … any disinclination of the person interested to part with the land acquired”.[3]The Land Acquisition Act of 1894 also saw state-based amendments over time that related to the computation of value of compensation.

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It has been interesting to note the scope of possibilities for analysis with the detail of 'Act' that is a part of all databases in the ecourts.gov.in project. With an Act, which is a law passed by a legislative body under which a case is tried, we can run a whole manner of analyses from our database. We are able to ascertain the proportion of the types of cases that pass through the legal system, and measure them up against the demographics of the places from which the cases emerge. However, as seen in this analysis, only a portion of all cases in our database do have this elementary detail, hampering wide-ranging analysis.

We wish to explore the debate around land acquisition further: what are the demographics of the litigants in cases to do with land acquisition? Is it possible to understand what kind of orders have been passed by judges towards these cases? Are compensations mandated in a timely manner? We hope to do this in the following weeks, so do follow our blog for more numbers and data. 

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[1] Wahi, Namita, ‘The Lay of the Land’ accessed at <http://indianexpress.com/article/opinion/columns/lay-of-the-land/>

[2] State of  Bihar vs Kameshwar  Singh, 1952 accessed at <http://indiankanoon.org/doc/49043/>

[3] LAND ACQUISITION ACT, 1894 accessed at <http://www.prsindia.org/uploads/media/Land%20Acquisition/Land%20Acquisition%20Bill,%201894%20_original%20text_.pdf>