How To Unclog Our Courts

A technology-driven business process re-engineering approach can dramatically improve the current sorry state of affairs

Civilisation emerges from the lawless jungle riding on the back of a juridical system that resolves disputes through non-violent means. India has had an uneven history in this regard but the relatively stable structure that we had inherited from the British is crumbling because people are now, more often than not, taking the law into their own hands.

Not because the judges are incapable, though in some cases that may be true, but because they are not able to deliver their judicial services in time.

Justice is being denied to large sections of the population simply because of abnormal delays. There are so many examples of this sorry state of affairs that it is pointless to give specific instances. The fact is too well known. Question is: What can we do about it? Obviously there is no magic wand, no silver bullet, but perhaps a technology-driven business process re-engineering approach can help.

“Measurement is the first step that leads to control and eventually to improvement. If you can’t measure something, you can’t understand it. If you can’t understand it, you can’t control it. If you can’t control it, you can’t improve it.”

So the first step is to take stock of every litigation, or court case, in the country. Yes, every one of  those 3 crore and more cases needs to be captured in a searchable database, but this is not as intractable a problem as it sounds.

Every court in the country publishes a daily cause-list that has the essential details of every case that is scheduled to be heard on a particular day. Fortunately, all this data is in digital PDF format and most of it can be found online, but in case any court does not publish the cause-list regularly, it must be compelled to do so since it is a cornerstone of the juridical process.

In fact, it may be a good idea to have a common format for all cause-lists but even otherwise, once cause-lists are available, a reasonably sophisticated text analysis software can be developed to extract this data and convert it into a form that can be stored in a structured searchable database for subsequent analysis.

The next step would be to track changes in the cause-list over successive dates and determine the “speed” at which a particular case is moving through the system.

The biggest cause of delay in the system is because hearings are postponed, often on trivial grounds, and the next date of hearing is months away. So by tracking cause-lists over a couple of months, it would be possible to determine, how many times each case comes up for hearing and what is the interval between these hearings. From this, it would be possible to build a life history of each and every case.

Some people may baulk at the sheer volume of the task and the fact that the difference-processing has to be done every day, but thanks to open source technologies like Hadoop, this problem can be addressed very comfortably.

Within a short period of time, this will create a real-time picture of the topology of juridical delay across the entire country. Where are the hot spots? Where are the biggest bottlenecks? What kinds of cases are held up the most? Which courts are the biggest culprits?

Which cases have been in the doldrums for the longest time? Are some courts better than others? Are some judges quicker than others? Are there any cases that have been held up for months? Can these be expedited?

Instead of crying hoarse about delay in general, we can now seek out particular troublesome areas and focus the best minds in the juridical system to come out with specific solutions to the most difficult problems.

This could involve, among other things, moving one set of cases from one court to another, and appointing, or transferring, an additional number of special judicial officers to specific courts to facilitate the “de-bottlenecking” of the system.

Solutions will emerge, once the contours of the problem are clearly visible.

One specific approach to the de-bottlenecking problem would be to motivate judges to improve the efficiency or throughput of the system. Judges have immense authority to allow or disallow adjournments based on their personal perception of the situation on the ground and this in turn has a direct impact on juridical delay.

However, they have no motivation to expedite matters and, in many cases, they are indifferent to the hardship faced by litigants when cases are deferred or adjourned. So how can we induce a sense of judicial accountability?

Continuing with our belief in measurements, we may consider a mechanism to monitor their  performance and offer a set of performance-related rewards—though this may be unheard of in government service.

Those with a deeper understanding of the judicial process may come up with a better metric but one can begin with a simple one that depends on just two factors.

First, the number of final judgments that a judge delivers every month, and second, the number or fraction of judgements of a judge that are subsequently overturned on appeal at the next level. The first would be a measure of speed and the second would be a measure of quality or reliability of the work done by a judge.

By creating a composite metric that gives an appropriate weightage to both factors, it should be possible to measure the performance of most judicial officers in the country.

This simplistic measure may not be appropriate for judges, who are seized of complex matters like constitutional law or international jurisprudence but should be good enough for almost all those involved in more run-of-the-mill cases—and this would constitute the vast majority of cases that are clogging the system.

Such a mechanism is no different from a formal performance appraisal system that is used by most well-managed corporate organizations to evaluate all but the most senior members of the management.

It should not be beneath the dignity of any judge to be evaluated in a similar manner, especially because the evaluation would be done within the framework of the juridical system of the country and not by any external agency that may have a mala fide agenda.

Going along with the corporate analogy, it may be a good idea if judges were to view themselves less as lofty dispensers of justice and more as providers of dispute resolution services. From this perspective, a litigant is no more a supplicant begging for relief but a customer who, through his court fees and taxes, is paying for the resolution of a dispute.

If judges can reconcile themselves to the fact that the relationship between a litigant and a judge is no different from that between a customer and a vendor, then many of the best practices of the corporate world can be transferred to the rather archaic corridors of the judiciary.

The easiest way to ensure faster disposal of cases is to dramatically increase the number of judges, particularly in the lower courts, where most cases are stuck. Fortunately, India is blessed with a large educated middle-class population, many of whom are trained lawyers and who would love to work as judges.

So it may not be too difficult for a central agency like the UPSC to evaluate and recruit another 15,000 judges over the next three years. But where will they sit? And hold court ? Recruiting so many judges may still be feasible but building so many courtrooms would be impossible. Again, we need to think differently.

Why not have all courts, except perhaps the Supreme Court, work in two shifts on every working day? So with the same physical infrastructure of courtrooms, we can have twice the number of judges, hopefully delivering twice the number of judgments every month.

Given the overstaffing, endemic to any government office, there would neither be any need for additional hiring nor for any extra record rooms but a judge may have to share an office with another if he or she stays on the premises beyond the shift hours.

So net-net, the capacity of the Indian juridical system can be effectively doubled quickly without incurring any significant capital expenditure and without the delay involved in constructing thousands of courtrooms.

In fact, if we view juridical services to be as important for the country as, say electric supply, railways and telecommunications, then there is no reason why judges should not work in two shifts. But again, this calls for a significant change in the perception of the work done by judges—they are not dispensing any largesse, they are simply providing a service to a customer.

Monitoring performance of judges and operating courts in two shifts represent a radical change in the way the juridical system operates in the country and would surely be met with stiff resistance from those who are entrenched and benefit from the current way of doing things.

No change is painless, but if the key stakeholders can be convinced or coerced through a competent process of change management to agree to a more corporate style of delivering judicial services, it will definitely lead to a significant improvement in the speed of delivery of justice in India.

Real-time monitoring of live court cases on the other hand is something that is easy to do with existing technology and with minimal disruption. It should be started right away so that we can benefit from some low-hanging fruits.