Fix the legal system, look beyond the apex court

Source: Hindustan Times dated 11.11.2019

-- Arghya Sengupta (Research Director, Vidhi Centre for Legal Policy. He was a member of the Steering Committee of the India Justice Report)

Improve judicial infrastructure, expand judicial training, and develop an evidence-based approach to reforms

Think of a single, prominent white dot plotted against a black background. Imagine taking a step back and observing the picture. You would not be the only one if you only observed the dot and overlooked the vast expanse of black, though present in comparative spatial abundance. The Supreme Court of India, the white dot in India’s judicial system, is the cynosure of public attention. Specifically, its relationship with the government, judgments in bellwether cases, taking up several public interest litigations and functioning of successive collegiums is the staple diet of front pages of newspapers.

The overlooked expanse is India’s creaking subordinate judiciary, the first and often only point of contact for the common person in the justice system. Overlooking what ails the subordinate judiciary is symptomatic of the natural preoccupation of the legal fraternity to veer towards the sensational rather than the significant. It is an explanatory void that many of us, myself included, have been complicit in creating.

In this context, the India Justice Report, coordinated by the Tata Trusts, a comprehensive survey of the pan-India functioning of the criminal justice system at the grassroots level, marks a radical departure. It ranks each state on the basis of the capacity in the four pillars of the justice system — police, prisons, legal aid and the judiciary. Its goal is simple, as its chief editor Maja Daruwala writes in her introduction, to “stop denying the undeniable, and repair this broken system”. By firmly shining a light on what ails the justice system at its foundations — the police station, the prison, the legal aid cell and the subordinate court — this report is a wake-up call for states and high courts to ensure the effective and humane delivery of justice.

Impediments in this quest, discernible from this report, and other emerging work in this area, are fundamentally threefold. First, the problem of execution.

According to the Vidhi Centre’s recent study, since 1993, the central government has released ~7,460.24 crore to state governments for building new courtrooms and residential complexes. Despite such ample monetary resources being disbursed, shortfalls in judicial infrastructure remain chronic. As a particularly egregious example, 100 district court complexes in the country do not even have toilets for women.

There is thus an urgent need to professionalise the administration of courts and streamline its interface with the government. This must start with appointing a professional CEO in the high court responsible for the administrative management of all district courts and liaising with the government on administrative matters. Management of the justice system is too specialised a function to be left to judges or career bureaucrats alone.

Second is the problem of inadequate judicial training. A mindset needs to be developed within the judicial system that the task of justice delivery has both micro and macro ramifications. Currently, judges are trained solely to deliver justice in the case at hand. While this is laudable, it often entails repeated adjournments, failure to pass costs orders (imposing costs on the losing party to bear legal expenses, a standard practice in courts in most countries) and an excessive obsession with procedure. These practices are oblivious to their knock-on impacts, creating delays and failing to disincentivise the filing of new cases, in the justice system on the whole. How to achieve systemic efficiency without compromising quality of dispute resolution in the individual case needs to be part of the syllabus at every judicial academy in the country.

Third is the problem of lack of evidence. Much judicial reform in this country happens based on anecdote and received wisdom, in lieu of an evidence-based approach. For instance, contrary to public perception, reservation quotas for women are not necessarily the best solution to ensure gender diversity in all subordinate judiciaries. As an illustrative example, the India Justice Report indicates how, despite effectuating affirmative action policies, Bihar only managed to fill up 11.5% of reserved seats for women. The inference is clear — reservation leads to greater diversity only when there are enough well-qualified women to choose from in the first place. Nuanced empirical research of this kind, rather than our intuitions alone, must underlie meaningful reform.

Justice, as the India Justice Report pithily observes, is the “business of us all”. Though much remains to be done, the report has firmly shifted the gaze away from the white dot of the Supreme Court to something that concerns us all — the hitherto neglected expanse of the subordinate judiciary in the backdrop. A journey of a thousand miles, after all, begins with a single step.