Recently, former Chief Justice Ranjan Gogoi castigated the judicial system, saying litigants had to wait endlessly for verdicts. “If you go to court, you don’t get a verdict, all you do is wash your dirty linen.” We agree wholeheartedly. But why did Gogoi not overhaul this outrageous system when in office? Other chief justices have done no better.
Without reasonably quick justice, law-breakers flourish at the expense of law-abiders in every field, from industry and education to politics and the bureaucracy. Of the 539 MPs elected in 2019, 233 faced criminal charges — a rise of 44% since 2009.
In 2019, the killing of four rape suspects in an “encounter” by the Hyderabad police evoked rapturous praise in the media. Some judges and columnists expressed dismay at police vigilantism, which violated human rights and the rule of law. Yet killing criminals in encounters is popular with the public since it seems to punish the guilty, which the courts seem unable to. Alas, some encounters kill innocents, but so does the formal judicial system.
Judges often say, “Justice delayed is justice denied.” Why then do judicial processes take so long that the accused die of old age before being convicted beyond all appeals? One example was Harshad Mehta, the 1992 stockmarket scamster. Another was Jayalalithaa, former chief minister of Tamil Nadu, declared guilty in a 1996 disproportionate assets case in 2017 after she had already died (her colleague Sasikala was among the accused, so the case continued after her death). The 1975 murder case of Congress Minister L N Mishra took 39 years for a verdict, by which time 31 of the 39 witnesses had died.
Gogoi said subordinate courts got 60 lakh new cases in 2020, pending cases in high courts rose by three lakh and the Supreme Court admitted 6,000-7,000 new cases. This implied four crore pending cases in subordinate courts, 44 lakh in High Courts, and 70,000 in the Supreme Court.
Uttar Pradesh alone has a backlog of 25,000 sexual assault and rape cases and 42,000 cases of offences against children. In 2019, the Ministry of Law and Justice released data showing only 62% of high court posts in India had been filled. The Allahabad High Court was worst, with 60 of 160 posts vacant.
The 2019 Economic Survey emphasised that judicial speed was needed not just for justice but enforcement of contracts, without which a market system cannot flourish. It estimated that adding just 2,279 judges in the lower courts, 93 in high courts and one in the Supreme Court would suffice for a 100% case clearance rate. Has this been done? Alas no.
Gogoi should organise a group of former Chief Justices to propose ways to ensure quick, fair justice. They should study World Bank research back in 1998 on countries that tried to expedite justice through new laws. This failed almost everywhere, mainly because judges themselves create precedents and procedures in actual cases, and so reform has to come from inside, not outside.
One way of doing so is to overhaul the system of assessing performance and making judicial promotions. Today, an innovative junior judge who tries to short-circuit procedures will find his verdict overturned in higher courts for faulty procedures. Instead, promotions should be based on an index that includes speed of trials, number of adjournments granted, days of absenteeism (which is alarmingly high in some cases) and innovations to increase speed. Once speedy disposal and the curtailing of adjournments and absenteeism become the self-interest of judges for their own promotion, they themselves will devise procedures that ensure faster closure. Reform will come from within.
Enormous potential for a judicial revolution comes from Artificial Intelligence (AI), which is already being used by judges in many countries. Justice requires sifting documents, researching old judgments, and searching for irregularities. E-discovery software has greatly speeded this up. In the UK, an estimated 21,000 legal staff have lost their jobs because of AI and digitisation.
In India lower-court verdicts constantly get reversed in upper courts. This lack of uniformity induces endless appeals. AI can help enforce uniformity in similar cases, making predictions of judgements more certain. This will discourage time-consuming appeals. Government departments today invariably appeal, fearing accusations of corruption if they don’t. If AI shows such appeals will fail, such fears will end and help slash government appeals, de-clogging the higher courts.
The US has a “discovery” process. Both litigants must in advance list their witnesses and evidence. Once these are known, AI can screen evidence, case law and judgements in similar cases and predict the verdict, which judges will not be able to overrule save in exceptional cases. That will hugely increase out-of-court settlements and unclog courts.
Mr Gogoi, these are just a few indicative ideas. Please get going.
Views expressed above are the author’s own.
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