By Desh Gaurav Sekhri & Satwik Mishra
The strain on access to justice in India may never have been as pronounced historically as it is today, during this pandemic. Already struggling to cope with pendency and delays, the challenges to timely and efficient dispute resolution have been exacerbated by the pandemic, necessitating major reforms, both technology-driven and in traditional processes.
This is highlighted by the draft vision document for Phase 3 of the eCourts Project by the eCourts Committee. The draft has articulated how Covid-19 has brought with it an “unprecedented opportunity for change” in the justice system. It has recognised the potential of technology accelerating and transforming access to justice with an entire ecosystem approach. This approach would use data-led analytics to boost processes; simplify procedures for litigants, lawyers and judicial officers with user-centric design principles; augment digital infrastructure with seamless connectivity across prisons, courts, legal aid authorities via open standards and APIs; and finally build new governance institutions such as the National Judicial Technology Council for augmenting the judicial-tech ecosystem.
The situation in terms of delays, of course, remains grim. According to the data accessed on the National Judicial Data Grid (as on April 13, 2021), the pendency of cases waiting to be adjudicated upon is 3,81,44,088 at lower courts, 57,51,173 at high courts, and 67,279 at the Supreme Court. But there is a new mindset and policy approach under way which can alter the dynamics and place India in a position of preparedness that helps ease of living, ease of doing business and, above all, ease of access to justice delivery.
Before we get to the refreshing changes being witnessed currently, it is important to examine just how challenging the status quo is. The courts, despite working overtime and rapidly disposing of cases, still have not been able to reverse the trend of increasing pendency. In 2019, the Supreme Court disposed of 45,787 cases, the high courts disposed of 19,17,049 cases, and district courts a sizeable 1,83,71,574 cases. Although substantial, there wasn’t a dent made, as the rising pendency of cases in India indicates.
Another challenge to justice delivery is the cost of litigation, making affordability a barrier to entry. Daksh, a legal policy think tank, conducted a survey in 2016 ascertaining the cost borne by individuals on litigation due to inefficient court processes. The study states that “on average, per day, civil litigants spend Rs 497 for court hearings and incurred a loss of Rs 844 due to loss of pay. Criminal litigants spend Rs 542 for court hearings and incurred a cost of Rs 902 due to loss of pay.”
From an ease of doing business perspective, one of the most susceptible to challenges from pendency, is entrepreneurial activity. A study by Manaswini Rao in 2020 that covers about 60 lakh cases in 195 district courts with an extensive sample of 13,928 companies showed that sales revenue, wage bills and profits are negatively associated with longer average duration for case disposal. Research also shows that the low rate of case disposal leads to substantive challenges for the economy. Amrit Amirapu in his paper ‘Justice Delayed is Growth Denied: The Effect of Slow Courts on Relationship-Specific Industries in India’ calculated that in India “if the fraction of trials resolved in less than one year were to go up by 0.2 standard deviation, it could have led to an extra Rs 5.43 lakh crore in the gross domestic product in 2018.”
India was ranked 163rd in ‘Enforcing Contracts’ in the World Bank’s Ease of Doing Business rankings 2020. This is worrisome as valuable economic activity such as investment in capital and tech-intensive projects is substantively incentivised by a robust contract enforcement regime, as brilliantly shown by Michael Seitz and Martin Watzinger in their paper ‘Contract Enforcement and R&D Investment’.
As the Indian economy grows, formalises and digitises, businesses will become multi-layered, innovative modules for operations will be conceived, transactions will escalate, and inevitably disputes will arise. Not having the mechanisms to efficiently resolve disputes hampers entrepreneurial endeavour and suppresses intellectual, social and economic growth. It is essential to augment the rate and efficiency of case disposals, ensure availability of effective dispute resolution mechanisms, and finally leverage technology to resolve disputes out of court via mechanisms such as online dispute resolution (ODR).
Solutions, both immediate and long term
Indian statutes have a legacy of over 150 years, with the Indian Penal Code coming into force in 1862. Obsolete statutes which trigger unnecessary litigation need to be eliminated as they are being done currently with over 1,500 statutes being removed in the last few years. Furthermore, for any new legislation, a sunset review clause should be made a mandatory intervention, such that after every few years, it is reviewed for its relevance in the society.
A corollary to this is scaling decriminalisation of minor offences after determining as shown by Kadish SH in his seminal paper ‘The Crisis of Overcriminalization’, whether the total public and private costs of criminalisation outweigh the benefits? Non-compliance with certain legal provisions which don’t involve mala fide intent can be addressed through monetary compensation rather than prison time, which inevitably instigates litigation.
Finally, among the plethora of ongoing litigations in the Indian court system, a substantial number are those that don’t require interpretation of the law by a judge, but simply adjudication on facts. These can take the route of ODR, which has the potential for dispute avoidance by promoting legal education and inducing informed choices for initiating litigation and also containment by making use of mediation, conciliation or arbitration, and resolving disputes outside the court system. The government of India can advance policies that mainstream ODR for ensuring an efficient and efficacious dispute resolution ecosystem, including perhaps for government litigation.
In the words ascribed to Charles Dickens’ iconic character Pip in ‘Great Expectations’, “there is nothing so finely perceived and so finely felt, as injustice.” The progressive approach of the Supreme Court, the rapid adjustment to online courts, the work being done across several spectrums by the government of India, and a fast evolving landscape in law and technology make this the most critical opportunity for transformative change. We have known the problem all along. Now we can actually work on solutions for tangible and sustainable outcomes.
Authors are OSD (Law), and head, Access to Justice, and Monitoring and Evaluation lead, NITI Aayog, respectively. Views are personal