Data and the Indian Courts

In the last few months at DAKSH we have been working with a lot of big numbers. We are collecting data on all ongoing cases from 10 High Courts in India. We already have details for over five lakh case records from these High Courts, and this data grows every day. Each day sees nearly 3,000 new cases per High Court being added to our database.

One of the many aspects of our study is a detailed analysis of the data systems of each High Court. As we have discussed earlier, each High Court makes available two sets of information: cases that are to be heard every day in the form of a cause list, and the status of cases that various litigants have filed. Put together, the cause list and case status details prove to be a very important resource for building our database. A central focus of our work is to understand the life cycle of a case: the total time a case spends in the court, from the date of its institution to the date of its disposal. What we do is gather this information such that details for each case is available for a closer look. If there are, as Court News tells us, 44 lakh cases pending in the High Courts as of June 2014,[1] we should, in the span of this year, be able to collect information on all these cases.

This data has not been collated in an aggregate form for analysis in India before. I am often left wondering how to navigate the question of ‘big data’: how to analyse this much information and what it tells us about judicial processes. This is an interesting question, as different court systems around the world are now using big data analytics not only to strengthen judicial processes but also predict criminal behaviour. As a result of this, the conversation about the use of data in countries such as the US revolve around the ethics of the use of data, since the problem seems to be too much information.[2]

In India though, although much is said about the judiciary relentlessly, analyses of the judiciary are usually encumbered by a lack of sufficient data. In the Indian context, there’s no doubt that data can be used to support or refute several claims being made about the judiciary. This is DAKSH’s approach: we review various arguments or claims made about the Indian judiciary by taking a close look at what the processes in the courts are telling us through data.

It turns out however that this data that holds so much promise comes with several problems, a notable one being lack of uniformity. Some courts make more information available than others. In some courts, we have extremely detailed information against each case number that includes all orders and listings of the cases. Some High Courts have historical data – not just on what is currently in process but on cases that have already passed through the system in previous years. Some other courts however do not even specify the date of filing for cases, which means that we do not have an accurate reading on the number of days the case has been in process.

So we are able to assemble only data that is available from each High Court website, contingent upon the data management system of that court. For example, whereas we are able to parse extensive case records for the High Court of Karnataka, which manages its data efficiently, we have very limited detail for the Calcutta High Court, which does not. We detail the availability (and lack) of data on our website: http://dakshlegal.in/info/court-data/

There is no standardisation across the different court systems, despite the fact that the case information and actors in the system are the same. This is an important point to note. For a litigant, that different High Courts have different ways of organising information is not quite relevant as long as they are updated about the status of their cases. However, it seriously hinders macro-analysis since it becomes impossible to collate and aggregate information. Comparative analysis is restricted in view of the absence of comparable elements. It also points towards the other fact that while the courts are working towards more efficient data management systems, each court is a data island.

What follows below is a brief overview of the data and some of our preliminary analysis. We began collecting data in January 2015. Our records detail all cases that have been heard during the period between January and May 2015. As of May 2015, we have information for 5,86,924 cases in 10 High Courts. Of these cases, 57.2 per cent are pending across the High Courts. This is an ongoing process, and more records are added each day. 

Figure 1. Cases and Pendency per High Court

Of the total number of case records in our database, 4.3 per cent have been pending for more than 10 years. Whereas only 0.2 per cent of all cases in the High Court of Karnataka are older than 10 years, 10.6 per cent of all cases in High Court of Judicature at Hyderabad are older than 10 years.

Figure 2. Number of Cases between January and May 2015

The chart above indicates the number of cases that have entered the High Courts since we started collecting data, and how they have fared in the three months they have been in the court. We find that more cases are pending than disposed of in the period between January and May 2015. In every court, there are a number of cases (indicated by the field ‘blank’) whose status (whether pending or disposed) is not known because the website does not specify their current status.

From January to May in the 10 courts, we found that whereas 6,982 cases were admitted daily in the High Court of Gujarat, only 320 cases (15 per cent) were disposed of.

Figure 3. Distribution of Civil and Criminal Cases

We are also interested in understanding what proportion of cases that enter each High Court are civil cases, and what proportion criminal. The chart above gives this information. Of the total number of cases in the database, nearly 60 per cent are civil and 22.9 per cent are criminal. However, 16.3 per cent of the cases in our system remain unclassified (as per the civil/criminal distinction). These are unclassified because we do not have sufficient information on case types for some courts to determine whether they are civil or criminal.[3]

We hope that this brief overview has given you a sense of the kind of information we are working with. What will follow in the coming weeks is more analysis, as well as data on six more High Courts and several district courts that DAKSH is in the process of collecting.

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[1] Court News, Vol IX, April–June 2014, available online at  http://supremecourtofindia.nic.in/courtnews/2014_issue_2.pdf (accessed on 05 January 2014).

[2] Jessica Pischko. 2014. ‘Punished for Being Poor: The Problem with Using Big Data in the Justice System’, PS Mag, 18 August, available online at

http://www.psmag.com/politics-and-law/punished-poor-problem-using-big-data-justice-system-88651 (accessed on 14 July 2015).

[3] Refer to our earlier discussion on case type classification in High Courts here and here.              

An Evening with Justice M.N. Venkatachaliah

 

Interview by Harish Narasappa, Shivabhushan Hatti, and Kavya Murthy

Earlier this year, the DAKSH team interviewed ex–Chief Justice of India, M.N. Venkatachaliah. A renowned luminary of the Indian courts, Justice Venkatachaliah is well known for his immense contributions to the field of law in India.

His education was in the former State of Mysore with a Bachelor's degree in Science and a Bachelor's degree in law from the University of Mysore. He commenced his practice of law in the year 1951 and was appointed as a Permanent Judge of the High Court of Karnataka in 1975. He was appointed as a Judge of the Supreme Court of India in the year 1987. Justice M.N. Venkatachaliah served as the 25th Chief Justice of India for about twenty months and retired from the Supreme Court in the year 1994. He has also served as the Chairman of the National Human Rights Commission and headed the National Commission to review the working of the Constitution. Justice M.N. Venkatachaliah is also a Padma Vibhushan awardee.

Now 85 years old, Justice Venkatachaliah lives in South Bangalore with his family. Amicable and welcoming, he is frequently busy with visitors. It was a fascinating experience to meet a mind so sharp at 85, and so full of insight.

The DAKSH team had prepared a set of questions that emerged from our work at The Rule of Law Project, ranging from an interest in Justice M. N. Venkatachaliah’s own history as a Chief Justice of India and in our data analysis dismantling or building upon commonly held assumptions on judicial delay. Justice Venkatachaliah's commentaries have given us useful insight into the number of ways in which the problems of case-flow management in the various tiers of the courts can be attended to.

Justice Venkatachaliah addressed our questions with the complexity necessary for a close look at the problem of judicial delay. He opened the issue by pointing out how a singular number of pendency – now held to be 45 lakh cases in the High Court, and 2.8 crores in the lower courts – is essentially meaningless unless seen at tandem with case–flow management, and litigation rates in India.

Interviewer

Sir, the first stage of  The Rule of Law Project was to see how to collect data on actual pendency. In looking through what kind of data is actually available, we ran through various stages of research. We looked closely at the Supreme Court’s  Court News that comes out every quarter with data on what number of cases are currently in process in different High Courts. This, though interesting, does not offer deep information as to the extent of the delay, the life cycle of an entire case, or how many days does it actually takes for either a Writ Petition or a matter in the Civil Court to reach conclusion in each court.

The central premise of our work asked the question of how we can get a sense of the life cycle of cases. For example, if you take any Writ Petition or appeal pending before a High Court, when was it instituted and how long does it take?  For how much time has it actually been heard in court? What is the best way of cracking the system, and generating our own data without relying on the way in which data in maintained in the system?

The answer came in the unusual form of using the daily cause list, used for litigants and lawyers, with which we have now built an automatic software that downloads the data and parses it into a standardised table. Since most High Courts have electronic databases, the software pulls down the entire case history. So, in a short span of about three months, we have been able to get started on collecting data for about six High Courts. We will soon extend this to all High Courts and selected District Courts.

One of the questions we have wanted to ask you, sir, is to do with causes of judicial delay. What are the primary causes? What is the significance of judge: population ratio?

M.N.V

Looking at the large numbers of pendency, staring at it and saying it is a big mess, is the moral equivalent of a defeat. But it’s really not such a big mess, because we as a country are under-litigated. This country is not over-litigated. 55 per cent of the High Courts’ 34 to 37 lakh* cases are in the same 5 states. The rest of the states have a balance of this number.

I have often said that in this country the population capable of litigation and which has some stake in the litigative process is very small. Take the entire population of Japan – for a million people there are 150 judges, whereas in India there are 11. This means nothing. For example, if you increase judges in Madhya Pradesh, 50 per cent of the Courts there will have no work at all. There is no litigation, and people have nothing to litigate about.

In the US, for a population of a 1000, in a year there are 338 litigations. Of various kinds, all of them are resolved. In Singapore, it is 89 litigations. Income level is the same, education level is the same. Why is it that Singapore has only 89 and the US 338? It is a controlled society. In Kerala, it’s 29. In Jharkhand, it is 4. So, you can see that there is no docket explosion here.

In speaking of pendency, it is all about lower courts. If you take care of lower courts, other courts will take care of themselves. This is where the speed and quality of the justice delivery system must be improved. That is very important. Judges in lower courts require periodic orientation courses – not highly theoretical studies of philosophy of law but they must have working experience of particular jurisdictions.

Now if we classify the cases, 98 per cent of cases fall into 14 categories. If you take one category, there are 4 or 5 cases which lay down the principles governing that jurisdiction. There are 2 or 3 cases which show the exceptions to the rule and the rest of them are all applications of these principles. The art and science of adjudication is very important education.

Interviewer

           How can case flows be managed?

M.N.V

There are about 3 crore arrears in the subordinate courts. 80 per cent are criminal cases…and 20 per cent are civil cases. When they come to the High Court, it’s about 36–37 lakhs.

In Europe, they have a new bank and an old bank. The new bank will deal with the current business so that the mucky past won’t affect the transactions in the future. From a particular cut out date, you separate the arrears. This is what needs to be done in the courts. Everything should be reduced to its component parts and each component attended to individually. At the core of case management must be the idea of bifurcating old cases and new cases.

One day in Bangalore, 90,000 cheque-bounce cases were filed in 1996 or 1997 before the High Court! I’ll explain how this happens.

There are phone bills, motor vehicle claims, and motor vehicle installments, for which cheques are taken in advance. At one point of time, this created a parallel build–up of cases in the courts. Judges noticed this build up. Here in this country, you should replace the time transactions of Negotiable Instruments and only issue cheque books and Negotiable Instruments if a client establishes his credibility. Formerly, Savings Banks would issue withdrawal forms for most clients, and only issue Negotiable Instruments after establishing the credit–worthiness and credibility of clients with Fixed Deposits and those showing sufficient transactions. If you deposit Rs.100 in the bank account and withdraw Rs.20, what is the purpose of printing cheque books?

Why doesn’t somebody think about it? It is as simple as establishing credibility and credit–worthiness of a client.  If you go to a banker, he takes your promissory note, cheque, and signature, and this has become a beautiful instrument of harassment of the debtor by bankers. This is a load on the judicial system. We must weed out these things. Lok Adalats are doing something in these cheque-bounce cases. As it appears to me, this system will not be able to handle this.

You know, in the Supreme Court, one case appeared in the Cause List 141 times! 141 times! And I think that is going to be the average hereafter. See, cases keep on appearing.

I think that there should be an assembly line, along the lines of the time slots prescribed by the Civil Procedure Code. You have to build case flow management, that is known as a Six Sigma System of Management. For e.g., a plaint of filing a suit presently involves physical activity. A plaintiff needs information about counters and location. There should be a system that specifies what to do on Day One of filing a case. This procedure should be listed for Day Two, Day Three and so on. This assembly line was worked out in the Bedfordshire County Criminal Cases.

For example, this assembly line can be put in place for new litigations, say from 01.01.2016. Establish and define all the steps in a litigation. First is the date of institution. Then there is scrutiny in court, or objections. The office objections must be cured, registration numbers issued. This needs to be done over a period of three days and electronically controlled. Notices can then be issued. You must amend the rules to say that email communication is a presumptively valid service. There needs to be some means of developing how the courts could deal with the internet. A litigant can then have a month’s time to file a written statement, according to the Civil Procedure Code. To be pragmatic, these time schedules can be doubled: give everything double the time.

There are also the problems of hearings and adjournments. The number of non-productive adjournments is simply mind-boggling! Why not create a 30 day electronic reminder – if a statement is not filed in time, why can’t a communication be sent to the litigant as a reminder?

Two weeks before a hearing, a reminder can also be sent to the lawyer, that if you do not file by a certain day, your case expires. This is the kind of innovation you need. Then, after the full statement is filed, if there are any interlocutory matters, they go vertically in the court. The whole thing is removed to another forum immediately.

That forum, I call the Auxillary Adjudicative Support System (AASS). Within this forum, you can see what consensual issues can be arrived at between parties. First you see if a matter is amenable for settlement. Reduce the area and scope of litigation This AASS must have lawyers; unless lawyers cooperate, no system will work. It has to be a system that is created jointly by the High Court and the Bar Council of India, with a retired judge presiding. The forum can act as a commissioner to record evidence. Prepare the whole matter, and place the brief before the judge. The first stage before a judge is the filing, the second is the completion of reading, and the third is a stage of framing of issues. Fourth is evidence. The AASS can negotiate this arena with the parties: how many adjournments each side requires for completing their side of the evidence. The adjournments can be granted generously, so that the parties are committed to it. Cross-examination with a formal witness can be done before this system itself. If the judge is given a brief, more slots will be made available in the system because older cases will be shifted into the AASS.

There is one other thing that I had suggested long time ago. In the event of the death of a plaintiff or defendant, it should be made mandatory to nominate somebody as a nominee who will continue with the case. I have calculated that wherever there is a death, 20 per cent is taken for serving the legal heir. The nominee should continue this litigation for whatever it is worth.

A similar system needs to be devised so that there is a self-liquidating mechanism for arrears. This can be tried in one complex, one place in North India as a pilot process, or as per court complexes with over fifty courts that account for fifty per cent of all litigation. It is said that of 35 lakh cases in the High Courts, 50 per cent are in 5 states.

The management of these cases takes immense manpower and should be done not by lawyers. Management of such systems and scrutiny of returns must be handed out to companies like Infosys. I had also suggested that Customs Clearances must be handed out to institutions like Infosys and TCS. There are only two things there, classifications and valuations, and it needs to be done mechanically.

There are other cases that cause a load on the judicial system, such as the ordinary ejectment suit, when the relationship between the landlord and tenant is admitted to court. These kind of suits also go all the way to the Supreme Court! What nonsense. If you suppose a lease commences on the 1st of January, does it expire on the 31st of December? When does the holding over a tenancy commence, on the 1st of January or the 2nd? Such matters have been known to go on for three months. Can you imagine what’s happening? I mean, it is something shameful that we have done with our citizenry!

Even in the Supreme Court. It should be the case that the Supreme Court first addresses cases that are older than five years. The court will come to a stage where you arrive at cases that are four years old, or three. However, this will not work unless you also deal with the present set of cases. Surprisingly, in the Supreme Court, if you look at it, 80 per cent are criminal cases. And when you come to the High Court, 80 per cent are Civil Cases.

The large number in this bogey of 35 lakh pending cases gets over if you have this self–liquidating system, even in the district court level. This is a very complex system you have to do to be controlled electronically.

Interviewer

            Some of your initiatives in the Supreme Court of India brought down the number of pending cases from 2 lakhs to about 16,000 cases. Can you please give us more details about these initiatives? 

M.N.V

Yes, in my tenure in the Supreme Court we brought the arrears to down to 16,200 cases. See, Interlocutory Applications were being numbered independently, like Civil Miscellaneous Petitions. In each case, there were at least two Interlocutory Applications. These numbers were daunting and were oppressing the statistics. So they were taken away. These were a class by themselves. 25,000 cases had been filed in the early 1960s, taken back, and not filed again. So we had to amend the rule to say that if they were not re–filed, they expire. This reduced our arrears by 35,000 cases. Secondly, the Civil Miscellaneous Petitions were discontinued, and there too, the number came down. Ultimately, the core cases came down to 16,200 on 15th February 1998. From 1,87,000 cases in 1991, the total number of cases in the Supreme Court was reduced to 16,200. We added another 3,60,000 over the next eight years, with an average of 40,000 per year. 

I had also attempted to initiate a programme in the Supreme Court after my retirement. My idea was that the court should have a running Constitutional Bench from 1st January to May. There are 112 matters referred to in the Constitutional Bench in total. In the High Courts, a large number of cases depend upon the outcome of these matters. Cases should be fixed for the whole period. At the end of the first term, two judges should move to the appellate division. From the opening to the dusshera vacation, the other bench will continue. 

There is no pressure of a lateral entry of cases. 

Then, in the last term, and as far as other courts are concerned, cases are fixed. There is no question of repeating the cause list 141 times! Cases should come in only once, and the list should be completed within time. 

 * The current statistics as per Court News deems that there are 45 lakh pending cases in the High Courts.

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.

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 245^th 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 245^th 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 245^th report, and on field work undertaken in Madhya Pradesh in 2013 on the functioning of the criminal justice system).

A Note on Law in India

A friend recalled something a friend of his had said on hearing how Joseph K, the protagonist of Kafka’s The Trial, waited outside the court not knowing what his crime is: “Why? Didn’t he know anyone inside?!” This anecdote is of course more than an anecdote. 

Law is not a source of paranoia about the loss of freedom in India. Nor is it a primary source of reassurance about why order exists in India. Indeed, law more commonly seems a pliable phenomenon: I know someone who knows someone who knows someone who can get it to work (or not work).  And, people also get law to behave the way it is expected to.  

Our relationship with modern law couldn’t not have been complex.

In the West, the ideals of citizenship – civil, political and social – were got from the state as an outcome of social struggle and revolution that wished to end the arbitrary power of monarchy and the church and put a democracy in place. It has been 200 years since this process began there.

The Indian state, as we know, embraced the constitutional ideals of citizenship without demands for them from below. The last six decades have been a period where these ideals have tried to find anchor in the minds of people. The state has done its bit in this regard. The news media, schools, political parties, and social movements have also contributed to making Indians see themselves as citizens above everything else.  Realities of brute power and vested interests have of course tried to subvert this process.  The diverse religious traditions and moral philosophies of Indian civilization, whose visions of freedom and equality are at odds with those embodied in the constitution have also existed alongside to provide meaning to social existence.  They have held out their own standards of reasonableness and of acceptable and unacceptable conduct.

Gandhi of course doubted the indispensability of lawyers for society and affirmed his faith in negotiating settlements outside the route of litigation.  In his writings on village reconstruction, Tagore had felt that the village communities could manage local disputes without the necessity of the police or the courts.  Gandhi and Tagore represent the continuing attractions of the desire to arrive at settlements outside courts. The ideals of community life that they espoused still matter in public life: the ideal of self-sacrifice, whereby an individual subordinates his or her interest for the sake of the community’s welfare, is very strong.  Or, the ideal of tolerance which lets people overlook faults, small or big, is also key to understand why so many city residents reconcile to live with their neighbours’ bye-law violations or not bother to report a dented bumper to the police.  The pain of navigating the police and the courts can explain these only to an extent.

The stark power realities that let the powerful to use and disregard law as and when they please has not meant a popular cynicism towards law.  Ambedkar and a whole gamut of distinguished political and social activists have attempted to build inspiration towards law as an instrument of social justice and political freedom. Legal activists continue to engage the courts as if vulnerable citizens mattered and gain victories for democracy. And, even if led by considerations by TRPs, media’s vigilante activism towards the legal misconduct of the government machinery, political parties and, on occasion, corporate companies, is high.  Despite the absurdly high rates of pendency, law still holds out a way for the affected.

We will have to start looking closely at how the various imaginations of law, civility, and equality are working around us.  Instead of viewing liberalism as sacrosanct and the other imaginations of law as illiberal and non-modern, a responsible political task will be to see how liberalism can be challenged, enriched and re-imagined by other ideas of equality and freedom.  And keep the future open.