Thursday, 18 February 2016

You've got five minutes. Go!

Work pressure - it’s a much bandied about phrase. While often associated with long hours and the compulsion to deliver difficult pieces of work in impossibly short time spans, the specifics of work pressure vary vastly from profession to profession. For the most part, work pressure stays a nebulous and ominous force, since quantifying it opens a Pandora’s Box in its own right. How would you measure work pressure – is it by looking at the number of hours that a person works in a day, the number of days of leave they get in a month, the number of pieces of work they have to send out every day or a permutation and combination of all of these as well as other factors?

Judges represent one third of the triumvirate of actors that make up the judicial system. In many ways, they are the constants of the system. Litigants come as their need arises and lawyers work on case by case basis. Judges however, are in court all day, every day, listening to disputes, deciding on them and writing judgements.  Currently, India has 601 High Court judges. Add to this number the 25 judges of the Supreme Court and you have 626 representatives in the higher judiciary for a population of 1.252 billion people. Right away, without trying to quantify anything, those numbers tell you that High Court judges are facing acute work pressure.

We know that High Court judges are having difficult days at work, but effecting systemic change and understanding the root of the problem, means looking at judicial work pressure from a quantitative perspective. This is where the DAKSH database comes in. Using the database, we are able to identify and analyse a key statistic to quantify judge’s work pressure – the average number of hearings that appear before a judge each day (court wise). Below is a chart that provides this number for certain High Courts in our database. 

To make real sense of these statistics, we need to take a step back and look at another number – the daily working hours for a judge. On average, judges spend between five and five and a half hours a day hearing and deciding cases. That is 300 to 350 minutes. With that figure in mind, take another look at the chart.  A quick explanation on the chart- The courts included have been chosen to represent a range of hearings per day. There are three categories that have been represented– courts with a low number (Himachal Pradesh), courts with a medium number (Orissa) and courts with a high number (Patna).

If we do some basic division, it tells us that most (relatively) relaxed High Court judges in the country have 15-16 minutes to hear each case that comes before them, while the busiest judges have about two and a half minutes to hear a case and on average, judges have approximately five or six minutes to decide the outcome of each hearing! 

This alarming statistic raises serious questions on the fairness of hearings in the courts as all parties may not get an adequate opportunity in each hearing. 

Tuesday, 9 February 2016

The curious case of ‘case management’

The curious case of ‘case management

By Surya Prakash B S (@SuryaPrakashBS)

Its time for judge led litigation system to be actively seriously considered as a means of tackling increasing pendency.

Recently there were reports of the announcement of a joint conference of the chief ministers and the chief justices of the various High Courts called by the Chief Justice of India. That the conference is being held within one year of the previous conference as against the usual practice of two years is a good indication of the importance of the topic.

Concerns about the functioning of our judicial process have been simmering for quite some time. There have been innumerable studies by the Law Commission and academics highlighting the failure of the judicial process as currently followed in practice. The travails of our adjournment ridden litigants led court process is now widely documented - in research papers, media reports and art forms. 

One of the radical measures that was being considered a few years back was the idea of 'court led litigation' or a 'judge led case management. The 245th Law Commission Report, ‘Arrears and Backlog: Creating Additional Judicial (Wo)manpower’ released in July 2014  refers (in foot note 14 on page 8) to a consultation paper on case management which can be accessed here

What is judge led case management? In essence it means that:
§    As soon as a case is filed the judge will decide on the nature and level of complexity of the case. This can be changed later on by the judge. 
§    Before commencement of proceedings, the judge, registry and the parties will agree on a schedule for filing of evidence. 
§    Judge shall have complete visibility on the stage-wise progress of each case. Information Technology tools to be used for this purpose.
§    After completion of admission of the petition and denial of documents the judge may refer the case to ADR mechanisms
§    If ADR mechanisms fail then evidence to be recorded before a commissioner
§    Cases to be called for hearing on completion of evidence being recorded. The number of adjournments to be granted would be restricted as per law

A court led litigation process has now been in place in US, UK and Australia (with local variations) for more than a decade - and all indications are that it has been a resounding success.

This may prompt the detractors of such a system to say, "What works in those developed Westernised countries will not work for us, because:
    1.     The social profile of litigants require the system to be lenient with timelines for justice to be truly served
    2.     Very often it is the state that seeks adjournments due to lack of manpower and other capacity
    3.     A shortage of judges means that adjournments are a necessity for both sides, more often than not" 

For a moment let us give some thought to what are the enablers for a judge-led litigation process to be effectively implemented:
§    An in-depth study of the type of litigants and reasons for adjournment seeking so as to identify cases for which such a system would not be suitable
§    More judges to be appointed so as to allow them to dedicate more time for each case
§    Additional support staff to be appointed for court management
§    Investment in Information Technology tools and infrastructure 

None of the above is beyond our means. Perhaps it is the means of making an informed decision that is slowly becoming beyond us. 

The recently enacted Commercial Courts Act has introduced the judge led litigation process. What should we infer from this? That high stakes commercial disputes between more or less equally well stocked litigants are more important to be dispensed justice promptly? Lets hope not. Lets hope this is only the first of the many nature of disputes in which a court led litigation process would be introduced.