April 06, 2014

Time as a factor in Indian Jurisprudence

image borrowed from
The Indian judiciary in general and the judges of the Supreme Court in particular have been in the news for taking some spectacular action in certain high profile cases like Sahara / Subrata Roy, Srinivasan / IPL, 2G / CWG scams and now of late, after the Nirbhaya episode, in rape cases. However, for the vast majority of Indian citizens, the Ram, Shyam, Jadu, Madhu who sit outside numerous high courts and district courts sipping tea and waiting for their cases to be heard and disposed of, the great terror is delay ! In India, litigation never ends -- it goes on and on and on until litigants die or use money and muscle power to settle out of courts. The complex series of adjournments, non-availability of dates and legal skulduggery ensures that cases never end and the Indian judicial system must be the poster boy for the maxim that justice delayed is justice denied.

All this is well known, what is not known is what can we do about this. In earlier posts I have tried to articulate some ideas so let me recapitulate the same and then propose something new.

1. First and foremost, we need more judges and magistrates at all levels. Like all government agencies in India the judicial system is also overstaffed but it is overstaffed with the useless clerks, peons and other support staff, not actual judges. Given the large number of qualified lawyers floating around our courts, appointing new judges would be easy -- what is impossible is to find rooms where they will hold court. This is where I suggest, as I have done in my post Sweating Assets to Expedite Justice, that we operate the judicial system in three-shifts, in a 24 x 7 mode. This will double if not triple the throughput of judicial services in the country and be the first step.

2. While lawyers and some litigants have a vested interest in delaying cases, it should be the judge or the magistrate who should have, and own, the responsibility of expediting the delivery of judicial services. We in the corporate sector are used to the concept of Key Performance Indicators that are decided on by management and which have to be met by executives before they are promoted or otherwise incentivised. Such KPI's are of course alien to government employees like the judiciary but it is high time that such ideas should be implemented. In my earlier post on Measuring & Monitoring Judicial Efficiency, I have proposed a set of 4 simple metrics through which a judge can be measured on both (a) the speed and (b) quality of his work. These metrics may be debated, discussed and refined but we must accept the inevitability of measuring and monitoring judicial efficiency. This must be tied to appropriate rewards.

3. Third is the concept of time -- something that does not seem to exist in the minds of a judge in India. The simple assumption is a case must take as long a time as is required to dispose of and there is no upper limit on anything. This is perhaps the most dangerous concept so let me explain this greater detail.

In principle a litigant's lawyers can go on talking for hours, seek an endless number of adjournments and in general delay things quite a bit. We understand  that judges of late have woken up to this dilatory practices and have tried to curtail this by disallowing adjournments but the effect of all this is perhaps visible in the Supreme Court and some High Court cases but not so in the lower courts where the vast bulk of litigants and their cases are stuck.

In fact, the delays and the resultant disappointments are not simply because of adjournments -- there are other, more nefarious factors playing here. Consider the following :

  • When a case is adjourned or deferred, a next "date" is fixed. This is the first level of corruption. You need to pay a bribe to the clerk to get the next date within a reasonable amount of time..
  • But even if you get a "date", there is no guarantee that your case will be heard. Someone else will also pay money, perhaps more money, to have his or her case scheduled on the same date ahead of  you and the judge is generally under no obligation to hear your case just because you have been given a date. Without contempt, let me state that many, if not most judges in India have an arrogance dating back to feudal times, and it is beneath their dignity to treat litigants as customers of judicial services. So if they feel like it they, simply stop hearing cases on a particular date and walk out, unmindful of the hardship that they are imposing on the litigant waiting patiently in the courtroom.
  • And what is worst is if the litigant's case is not heard on the scheduled date, it is not that it is heard the next day -- it is postponed to another future date which has to be obtained again,  by paying more bribes. This is the what really kills the litigant.
So what we need is at transparent scheduling and time management mechanism in the judicial system. Let us see  how we can go around designing such a system.
  • First like chess players, we need to allocate a fixed amount of time to each litigant to have his case argued. The bench and the bar can sit down and decide upon the quantum of time to be allocated for different kinds of cases -- say civil, criminal, tenancy, income tax, and at different levels like district, High and Supreme courts. Once the time is fixed, there must be clock, just as in a chess game, that will measure the amount of time spent by a litigant and this will form a part of the court records. And like Twitter that simply would not allow a single character after 140, the judge must not allow a single minute more to be spoken or otherwise allotted to a litigant.
  • The entire block of time need not be consumed in one day. It may be spread across three or four days but the cumulative figure must be tracked and adhered to. Obviously this calls for creating a computer system to keep track of the cases being heard and the amount of time consumed in each. This is hardly a challenge for any software developer who are used to tracking hundreds and thousand of items in a retail store or thousands of airplane flights taking off and landing in airports around the world. Such a software can be built easily. What we need is the management ( or judicial ) will to implement it. This calls for education, change-management and finally good big stick to beat people who fail to fall in line.
  • What is important however is the scheduling of cases. When a case is adjourned, there must be an automatic system that will schedule the next hearing based on (a) the number of cases pending before the same judge and (b) the duration of time left for the case. Algorithms to create such schedules are easy to make and there can be a manual override to handle situations where the litigant, the lawyer or the judge has a problem or a schedule conflict.
  • The schedule that shows the cases listed and the time allocated to each case must be a public document that is freely accessible on the web. Schedules can slip because of exigencies and circumstances but the slippage must be reflected immediately on the public website along with all cascaded changes. So if the case for A cannot be heard on day D, then it must be heard on day D+1, not on some indefinite day D+n. If this means that the case for B scheduled for day D+1, cannot be heard then it should slide to day D+2 and not some distant date D+m. Since the modified schedule is in the public domain, B should keep track of his case and note that this case has been postponed from D+1 to D+2 and plan accordingly. If D+2 is a problem for B then he should be allowed seek a change and the scheduling software will create a new schedule not only for B but all others down the line.
  • Since the schedules and their change are always in the public domain, it will always be possible to have audit trails that will allow the senior management ( or the higher judiciary ) to make sure that all schedule changes are on the basis of genuine requirements and any aberration can be quickly spotted. Also litigants will have a clear visibility on the days their case will be heard and will be spared the immense harassment of going to the court and waiting and hoping for their case to be heard.
The technology to make all this happen is easy to design and build. Moreover this concept can be introduced with far less disruption than either (a) three shift courts and (b) metrics for judges because judicial staff will have no reason not to agree with this change. However this transparency will have a severe and crippling impact on the lower judicial staff from making a lot of money and hence it may be opposed tooth and nail. But if the higher judiciary can make this happen, then litigants in India will be forever grateful to their Lordships.

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