Of Surveys and Selfies

For the last year, our work at Daksh has been data, data and some more data to do with the judiciary and its performance. We verify the data, we analyse it, and work towards creating technologies and interfaces to enable us to dig deeper into the judicial system and understand pendency. At the heart of our work is the question, where does the litigant fit into this system?

Harish Narasappa (co-founder of Daksh) once told me that Upendra Baxi, one of India’s most renowned legal scholars, is said to have remarked that the pathology of the litigant in India is very little understood. What troubles do litigants face when they have to travel to the court and back? How many hearings do they have to face for cases ranging from theft to murder to instances of cheques bouncing? What is the real cost of the glacial pace at which the judiciary is said to operate, for the people it stands to serve: the litigant?

We thought of many ways by which we could understand this, and along the way we came to realise that what we really wanted to know were facts: how much do litigants spend to get to court? How many days of work do they lose? What are the backgrounds of the people who spend their time looking for justice in the lower courts? What are the conditions of justice in this country for the common citizen?

As a result of many months of brainstorming, Daksh has now begun a nation-wide survey that will address and study the experience of the common citizen in the judicial system. Called the ‘Access to Justice Survey’, and the first of its kind, this survey will map litigants’ perceptions on issues relevant to their experience within the judicial system. This survey hopes to understand the profile of litigants and the ease and access of judicial systems to them.  

The Access to Justice survey will send surveyors to district courts in far flung corners of the country. We expect to have 10,000 respondents across 250 towns and cities. Between 80-100 surveyors will traverse these locations and meet respondents at different courts.

Daksh has spent the last few months conceptualising and designing this extensive survey which uses different technologies for its purpose.

Our questionnaires have been made available in an Android-based app that enables surveyors to capture respondents’ responses. Our surveyors will use their Android phones with active Internet connections to conduct the survey.

On their visits to District-level Civil and Criminal courts, the surveyors will meet litigants -- both plaintiffs and respondents -- in person, and record the responses of respondents on the app. The app is enabled with a geo-tagging mechanism that helps us keep a note of the different  locations covered by the surveyors.

Our survey has now begun in earnest, across different parts of South India, some parts of Maharashtra, near Delhi and Uttar Pradesh. In the following months, our surveyors will have travelled from Adilabad to Aurangabad, Bastar to Surat. And from each of these courts, our surveyors send us a selfie on a Whatsapp group that we now use for questions, queries and doubts that the surveyors may face. 

Just yesterday, I woke up, switched on my mobile internet, to find a selfie of a man on WhatsApp -- from Ghatampur, Kanpur Nagar in Uttar Pradesh, taken in front of an Upajilla Magistrate Court. Later in the day, another selfie from the Civil Court at Khurja, Bulandshahar, also in Uttar Pradesh. This process is already helping us learn a lot about the country and it’s dense web of institutions and we are looking quite forward to get #selfieswithcourts to be all the rage in the coming months!

Fast Track Commercial Courts

Fast Track Commercial Courts

By Surya Prakash B S (@SuryaPrakashBS)

Recent developments seeking to set up fast track commercial courts are a good example of how our judicial reform process is hampered by lack of relevant data and clear reasoning.

In the Budget Speech in February 2015, Finance Minister Arun Jaitley had announced the Government’s intention to prioritise the establishment of commercial courts. These courts are meant to facilitate the speedy disposal of commercial disputes, which are typically resolved only after several years spent in the judicial system. The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Bill, 2015 was introduced in the Lok Sabha in April 2015 and is currently being examined by a Committee under the Ministry of Law and Justice. An excellent summary of this Bill by PRS Legislative Research can be found here.

Meanwhile, according to press reports, the Prime Minister has on 20 October approved the issuing of an ordinance to make this bill a law. After the ordinance receives Presidential assent, state governments will need to make necessary changes to their respective High Court regulations to operationalise the new scheme.

This is not the first time that commercial courts have garnered attention. The Law Commission had previously submitted a report on this issue in 2003. A bill was introduced in the Rajya Sabha in 2009 after the Lok Sabha approved it – but was then referred to a select committee of the Rajya Sabha. A revised bill was introduced in the Rajya Sabha in 2010 which was then referred to the Law Commission for analysis. The Commission submitted its second report on the topic in February 2015.

Some of the relevant highlights of the recommendations of the Law Commission are:

• The need for setting up commercial courts in India is ‘obvious’.
• High Courts that have original jurisdiction for commercial disputes should set up Commercial Divisions – there are five such High Courts. Original jurisdiction means that the relevant High Court can directly admit commercial disputes above a certain value without the lower courts having to hear the matter first.
• Other jurisdictions should set up separate Commercial Courts, e.g., Bangalore, Madurai (together referred to as ‘Commercial Courts’ in this article).
• The new Courts can hear only disputes of Rupees One Crore or more.
• Judges appointed to the new Courts should have demonstrable expertise and experience in commercial litigation.
• A time bound procedure for filing statements, hearing and disposal mandated. Court fees to depend on the number of hearings. This will be court-led litigation (rather than led by litigants).
• Orders of the Commercial Courts to be heard by the Commercial Appellate Division of the High Court.  

Some Aspects

Need for reform

While making a case for commercial courts, the Law Commission’s report gives data on pendency and a sizing of the commercial disputes at five of the High Courts and concludes that there is significant pendency and sizeable number of cases. The question that we have to ask is whether commercial disputes are in any way different from other types of disputes (e.g., criminal, social, constitutional). There is nothing in the report that compares the pendency rate and size of the various types of cases so as to justify that a reform of commercial disputes mechanism should be taken up first over other types. The previous Law Commission report on this topic too starts with the assumption that commercial dispute resolution needs to be fixed without any background as to why this is so.

Tables 2.1 of the Law Commission Report talks of total civil suits pending. Tables 2.2 and 2.3 pertain to suits with original jurisdiction only. Table 2.4 gives what percentage of original civil suits are commercial suits.

Let us for a moment see how much of total civil suits are comprise of such ‘commercial disputes’ based on the above numbers:

High Court	Total Civil Matters pending (as per Table 2.1)	Total Commercial Disputes pending (as per Table 2.4)	%
Bombay	2,99,931	1,997	0.67%
Calcutta	2,30,317	5,352	2.32%
Delhi	49,000	3,582	7.31%
Himachal Pradesh	54,015	88	0.16%
Madras	4,90,383	5,865	1.20%
Total	11,23,646	16,884	1.50%

As can be seen above, commercial disputes form only 1.5% of the total number of civil suits pending at the High Courts.

It would have been ideal if the report had analysed the various types of civil suits pending and then arrived at a logical conclusion that among these cases ‘commercial’ disputes are more worthy of being reformed first. Para 2.4.4 the report admits of difficulty arising out of differences in classification practices across High Courts. A measurement of pendency across High Courts would have demonstrated a need for commercial courts to be set up throughout India. What is apparent is the lack of data to measure the judicial system.

The capacity of the State to dispense justice is a limited resource. Parties who have other means of dispute resolution (arbitration, mediation, etc.) by choosing to use courts, are taking away resources from other parties who do not have any such alternatives (e.g., criminal, social, and constitutional matters). Utilising this scarce resource should require a complete cost-benefit analysis for society. Admittedly, estimating costs is a complex task, but surely the gravity and the far reaching implication of the task before us requires it.

Fast Tracking

The Report recommends the setting up e-courts with world class infrastructure and time-bound disposals. It also recommends that the court fees charged should be commensurate with this facility. Whether the justice dispensing function of the State should be thus made easily available for those who can afford to pay high fees is be a concern. The Report itself lists out certain concerns of the members of the Rajya Sabha about this move being ‘elitist’ and ‘corporate friendly’ (pages 7-8). There is nothing in the Report to assuage such concerns. However, if the State does decide to dispense justice in a certain manner to a certain category of citizens, then recovering costs incurred for the same from those citizens is not irrational.

Monetary Threshold

Only disputes of value of Rupees One Crore or more are to be admitted in the new Commercial Courts. The system of pecuniary limits, which varies between High Courts, has already been in place for some time now. The basis for arriving at this threshold has not been provided – neither has an impact analysis been done.

A break up of outstanding matters via a break up of cases by monetary limit in five High Courts have been provided (table 2.6 page 19), of course with caveats on the accuracy of the data. As per information provided here cases above Rupees One Crore constitute only 25% of the outstanding commercial disputes. What would have really been convincing is a monetary threshold wise pendency data (table 2.7 on page 20 only gives total pendency).

By increasing the threshold all that has been achieved is pushing cases to lower courts – and a statistical improvement in the disposal rate of the High Courts. Is that really solving the root cause of the problem? It may be prudent for the Government to have a road map to make such commercial courts more inclusive and a time bound lowering of the thresholds.

Judges

One also needs to bear in mind that judges for such fast track commercial courts would be drawn from the regular benches at the High Court. Because of the time bound nature of these courts, judges will have to devote more time to such matters. And indeed that is the objective. If the overall number of judges is not increased commensurately the setting up of this court may lead to increase in pendency of non-commercial disputes.

Conclusion

A bold change from a litigant-led litigation to a court-led one is being tried out for the first time. Given the increasing pendency rate at our courts while any change is welcome from a status quo, the process of deciding what areas to begin the reforms from needs to be more logical and thought through completely.

A close look at Karnataka High Court

It's been a while since we've taken a close look at our ever-growing data, and we're back with a small analysis of the Karnataka High Court.

As an update, we now have data for 8, 71,406 cases from 10 High Courts. The distribution of cases across courts is explained below. 

As you can see, a significant proportion of all cases in our database -- about 25% -- are from Karnataka. The data from the Karnataka High Court website is both comprehensive and well-maintained. The biggest advantage has been that we have accessed historical data, meaning data on cases from previous years in the court.

Note: The distribution of 8 lakh cases in the Daksh database as per High Court.

We decided to have a look at the average pendency of cases as per case types in the Karnataka High Court.

The average pendency is the number of days on average cases remain pending in a court (as on date). We split this up by case type: A case type is a classification laid out by each High Court that allows cases to be sorted for administrative purposes. A case type is usually based on the subject matter of a case.

Essentially, what we are looking at is how long a subject matter is likely to take in a High Court, as per our database today.

Of the 2 lakh sixteen thousand cases from Karnataka, there are 53 case types. We have at Daksh categorised the case types according to broader groups of civil and criminal. Of the case types in Karnataka, about 51% are civil cases, and only about 16% criminal. The remaining 33 % of the cases could be either civil or criminal, being a variety of miscellaneous petitions, appeals and matters that cannot be classified with just the knowledge of case types.

It turns out that writ-related matters constitute about 32% of all cases that are in Karnataka High Court at the moment. As mentioned by Ramya in an earlier blog post, writs are the orders certain courts issue to enforce a citizen’s Fundamental Rights (as laid out under the Indian Constitution). And it appears that on average, all these matters have already taken 2 years in court.

Appeals in the Karnataka High Court constitute nearly 49 % of the total number of cases -- and we’re looking at Writ Appeals, Miscellaneous Second Appeals, Miscellaneous First Appeal, Criminal Appeal, Income Tax Appeal, Regular Second Appeal, Regular First Appeals.

An appeal is a case that arrives at the High Court after it has finished its life in a lower court. This happens when a party in the case is unhappy with the outcome of a case, or the final ruling made by a judge. What the party is allowed to do, legally, is request a judge in the High Court, to revise and reconsider this outcome.

Appeals can be both civil and criminal matters, and usually appear in the High Court after a significant life span in a lower court.

The average pendency of appeals in the Karnataka High Court is 1253 days -- that is nearly 3 and a quarter years! By their very nature, appeals have already been through a whole life cycle in a lower court.

Assuming that these cases have taken even half the time that they are currently taking in the High Court, an appeal in the Karnataka High Court appears to have spent at least 5 whole years in the courts itself!

Justice delayed indeed!

The Right to a Writ

This is Part II of a three part blog post. You can find Part I here.

It’s been a couple of weeks since I wrote the introductory piece to this post, a ready reckoner to the right to constitutional remedies under the Indian constitution. Today, we’ll pick up from where we left off last time, when we were discussing possibly the most important four letter word in Indian legalese. W-R-I-T. It’s a small word, but it packs a powerful punch. 

A quick recap: writs are the orders certain courts issue to enforce a citizen’s Fundamental Rights (as laid out under the Indian Constitution). It sounds easy enough, but getting a writ order passed is a bit more of a treasure hunt.  There are a bunch of conditions that need to be fulfilled and specific fora you need to visit, to get your writ. 

For starters let’s try to understand when you can invoke your right to constitutional remedies. We’ll break it up into four main conditions that need to be satisfied. 

1. First of all, one of your Fundamental Rights needs to be violated. This means any one or a combination of your broad Fundamental Rights – namely the right to equality, right to freedom, right against exploitation, right to freedom of religion, and cultural and educational rights, along with any of the more specific rights mentioned under these (such as the right to education), need to be breached.     

2. Secondly it won’t merely do if HR manager Ram at the California based software Company where you work implements a policy partial to men or next door neighbour Shyam cuts you off and doesn’t let you talk at an apartment resident’s association meeting. By and large fundamental rights are invoked against ‘the State’.  Who or what is this shadowy ‘the State’, spelled with a capital S you ask? ‘The State’ is a collective reference to the bodies against whom Fundamental Rights are enforceable. Article 12  of the Indian Constitution attempts to sketch out who exactly ‘the state’ is. As per Article 12, ‘ the State’ includes’:

a. The Government and Parliament of India.

b. The Government and Parliament of each of the states of India.

c. All local and other authorities under the pervasive and predominant control of the Government of India. Local authorities are those such as panchayats and local municipalities while an example of other authorities would be a governmental body. 

The makers of the constitution envisaged the enforceability of citizen’s Fundamental Rights against the government to be one of the key holders of the government’s accountability to the people.

3. Thirdly you need to be more than just a witness to this breach of Fundamental Right. You need to be the victim, In general, you need to be the person whose constitutional right or legal right has been infringed. However, to expand the base of citizens who can file writs, the judiciary has come up with something called the ‘doctrine of sufficient interest’. As per this doctrine, any person whose fundamental rights are remotely affected in the tiniest way can petition the court to pass a writ order. It also allows proactive people focused on public betterment to file writ petitions for any person or class of people if that person or class of people cannot afford it.

4. Fourthly and finally, if your Fundamental Right is in fact violated by the State, even then you can’t just march into any court or tribunal in this country and demand that your writ petition be passed.  In the three tiered system that is the Indian judiciary, it’s only the second and the highest rungs, namely the High Courts and the Supreme Court have the authority to issue writs. 

There you have the essential elements of a writ filing. Fundamental Rights, violation of these rights, ‘the State’, victims not witnesses, and the higher judiciary. That’s how you establish the right to your writ. 

While there are several nuances of Fundamental Rights that we’ll go into in future blog posts, this is all for today. I’ll be soon following this up with a post detailing the different kinds of writs and writ related data in the DAKSH database. Thanks for reading and see you soon!