New Delhi: The task force on judicial impact assessment, or JIA, has submitted its report to the ministry of law and justice in June. The report, which could bring in major changes in the country’s judicial administration, is being examined by the Union government and the Supreme Court. N.R. Madhava Menon, a member of the task force, and also founder of the National Law School of India University, Bangalore, spoke to Mint about problems facing the judiciary and the challenges ahead. Edited excerpts:
Your report introduces the concept of judicial impact assessment, or JIA. Please explain.
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There are currently more than 26 million cases pending in courts across the country. How does the JIA concept aim to set this right?
A law commission report said recently that if we were to operate the court system as it is now with the current number of 14,000 judges, it will take another 300 years for the 26-million-case backlog to be cleared. This means that the waiting period for people to get justice from courts will get longer. The JIA report suggests methods to tackle such problems in the judiciary.
The report recommends setting up of JIA offices. Could you explain how these offices will function?
These offices—set up at the national, state and district levels—will gather statistics on a variety of things. These will process and analyse data to help reorganize weak points in judicial administration. These offices will be key institutions not only to develop linkages (between judiciary and legislature) and streamline budgeting of courts, but all judicial reforms will depend on them. These will neither be judicial nor executive bodies. They will give credible data to decision makers for increasing the number of judges, allocating finances, and so on.
Just the beginning: N.R. Madhava Menon, member of the task force on judicial impact assessment, or JIA. Menon says JIA will process and analyse data, leading to better judicial planning. Photograph: Harikrishna Katragadda / Mint
What are the major factors that increase the burden on courts?
Litigation is increasing due to three processes. First, by legislative activity. Second, by judicial interpretation of laws. For example, the Supreme Court expanded the concept of freedom and liberty under Article 21 (right to life) of the Constitution by giving it a broader interpretation. More and more rights were read into it such as the right to free legal aid, right to speedy trial and right to privacy, among others. When you create more rights that also increases litigation. Third, by economic activity.
How do you explain the relation between increasing cases in courts and economic growth?
Economic development means more investment, employment and technology transfer. All these are regulated by contract law. With greater economic boom, comes greater number of contracts and if one side doesn’t perform its obligation, the parties go to courts. In every model of capitalist development, contract is a key legal tool for development processes.
Calculating the number of cases that will arise by new legislations seems like a complex and novel concept. What are the methods suggested by the JIA to do this?
The first is the national legal survey method—asking people if they will go to courts when a new right is available to them. Economists argue that their reply will be conditioned by rational thinking. That is, by calculating the benefit they will get from litigation, how much they will have to wait and their chances of winning or losing. Economists and statisticians say there are models available to conduct this (survey). The second method is experimental economics. Making an experimental study of quantifying the workload in courts by seeing how similar legislations in the past have led to litigation. So, through regression analysis you can calculate the workload to be generated in courts. Third is the empirical study that requires a lot of judicial data.
Once the number of cases generated by new laws are calculated, how does one calculate the cost on the court to handle them?
This is the next level of analysis. Additional cost depends on the number of judicial hours and time taken for pleading in court, that includes issuing notices, filing affidavits, adjournments and passing interim orders. The time taken and cost of each stage of civil and criminal litigation is added to calculate the cost in terms of administration of justice. These two levels sum up the JIA statement.
The report urges the need for judicial reforms such as better court planning and budgeting systems. Why do you think these aspects are of vital importance?
Today, we pass laws based on international treaties but institutional reforms have not yet taken place. JIA also suggests better planning in the setting up of courts. Today, a judge sits one day in a family court and the next day in a criminal court. There is a degree of specialization besides attitudinal changes and values that govern the process of the court. Time has come for judicial reforms in this sense. We must be supported by judicial training and better infrastructure in courts. How many more courts and judges we need, JIA should reveal these figures. The Chief Justice of India has gone on record to say nearly one-fourth of judicial posts are always vacant and state governments take a long time to process appointments. This is where we need judicial planning. If we know today that X number of judges are retiring next year, we must start the recruitment process right away. I would say, the judiciary must also go to the campuses and hire talented people who are drawn to the corporate world.
What would be the challenges in implementing JIA?
Money will not be a problem. Generation of data to support the JIA method requires the right kind of personnel... We have a long way to go and this is only the beginning.