Judging the Judges

At the top sits Mr. Narendra Modi, who has to outline this agenda item and 'deploy' it, i.e. ensure that every arm of Government, every action and every structure is focused on increasing productivity. It takes (almost) no money, but a (change of) culture and becomes a habit, right down to the frontline. Let us take a look at some of the reforms which would enhance economic productivity with almost no incremental cost. TQM experts often say that quality enhancement is incomplete unless it results in cost reduction. Higher quality always comes from higher productivity, but rarely with higher cost.

Let's start with the Judiciary first. Though not strictly under the full control of Modiji's new agenda, but judicial reforms (besides that other holy cow, labour reforms) would have the potential to produce the highest increase in costless productivity, and consequently, the biggest multiplier to the economy.

Joseph Schumpeter first pointed out that people respond to incentives, and only that, they respond to nothing else. Apparently irrational economic behaviour so appears (irrational) simply because onlookers are unable to figure out the incentives that motivate the active (economic) players. So many actions of democratic Governments appear irrational to strictly academic economists simply because they are unable to understand the electoral calculations behind them.

This theory can be applied to the Indian judiciary too. Why would a judge want to decide (a case) fast? or decide a case at all? Out of the goodness of his heart? I once heard a lawyer argue that the case was an open-and-shut case, but no judge would give a quick judgement simply because it would look odd if he did so, i.e. if you are actually doing your work sincerely and diligently, you are somehow in hock to the litigants. As a student of human motivations, this was completely logical to me, if not rational, but how does it sound to you?

The point is, the judicial system needs an 'incentive' to do its work, and Mr. Modi needs to provide it. He needs a “Rockstar” Chief Justice to initiate a reform programme, the first of which would be a system of incentives that would discipline the output of the Courts. Incentives can be both carrot-and-stick, but there should be a mechanism to measure judicial output. A quality assurance process would audit the judges for the quality of their pronouncements and thereafter, subject to such (quality) constraints, there would be clear, measurable targets for the number of cases decided. A system of 'apprentices' could have 'trainees' developing templates which are decided by senior judges and using such (templates) for deciding similar cases. It happens in the private sector all the time; why does it sound so shocking when we are discussing the judicial process?

Just throwing more and more judges at the problem of clogged cases will not get you improvements. Delaying tactics by lawyers (and litigants) should be punishable offences, with temporary suspensions and disbarment after multiple offences. Continuous everyday hearings should be the norm rather than the exception and the freedom to appeal should not be available as a matter of course, only where a miscarriage could potentially infringe upon the principles of natural justice. Chief Justices should be responsible for the clogged case rates, just like Police Commissioners are held responsible for the crime rate.

There are many ways in which the private sector can be brought in. Judicial record-keeping and referencing of precedents can be handed over to a BPO, which provides support to a judge, just like a Bank's backroom helps the frontline Relationship Managers (RMs). This teamwork would normalise conflicting judicial pronouncements, another sore point for litigants and the law-abiding populace. It would reduce corruption in the same way that the automated Income Tax assessments from Bangalore have reduced corruption in the Income tax Deptt, i.e. there is an automatic peer review of an ITO's assessment.

Once you have such a system in place, it is possible to demand very high levels of 'coverage' from the frontline Judges, just like the banks demand the world from their RMs. Frontline Judges would focus on recording and collating evidence, while points of law would be decided by the 'backroom'. The Judicial process would then really be that, i.e. a process, broken down into sub-processes, which are then turned into an assembly line of similar cases. This improves both quality and the quantity of cases decided. Certainly, special Courts like Income Tax and Rent Tribunals, besides Family Courts would be amenable to such improvements.

Big, complex cases would see 'teams' of judges put together in the backroom, which make demands on the frontline Judges to collect and collate evidence. The Judiciary could have its own investigative wing, to carry out specific tasks at the instruction of the frontline Judge. This wing would have quasi-judicial powers that allow it to initiate investigations through the Police and Government agencies, verify independently if the need arises and lift any institutional veil if need be. While it sounds too radical, it would help bring down judicial complaints of 'inadequate investigation' and 'lack of evidence'. It would also reduce their passivity in having to accept whatever is offered by the Police in their investigation.

But back to the main issue of increasing productivity of the Judicial system with a view to reducing the number of clogged cases. Like I pointed out above, the senior Judiciary would shift to a 'backroom BPO' that works like an IT company, with domain experts that quickly come together to work on a particular case, disband and re-unite in another team that is working on another case. This would have a dual benefit: one, it would bring greater domain expertise to single-Judge 'benches' and two, it would distribute responsibility for major decisions to a 'committee'. The frontline Judge would only be delivering the judgement, which would anyway have been subjected to prior peer review.....in sensitive cases, it would reduce the all-too-human fear of doing the right thing. This is particularly true of PILs and political cases, even criminal cases like the Vikas Yadav or Priyadarshini Mattoo case.

Unnecessary judicial activism, especially in complex economic matters, will reduce and judges with an axe to grind, will be fettered. The underlying motivations may be political, ideological or just plain playing to the gallery, they will all be watered down by BPO-system.

This brings up the question of judicial courage and contrarianism. The spirit of judicial activisim, so visible in landmark judgements of the Court, will be lost. A single brave Judge may have the ability to turn the nation in the right direction: in areas like environment, social structures, religious issues (like Personal Law, Babri Masjid case, etc), these are very important contributions of the Judiciary. Governments have often taken cover behind the broad backs of a brave Judge to push through painful reforms that they could not initiate on their own. How do we preserve this valuable contribution of the Indian Judiciary, at the same time ensuring that for the larger populace, the hierarchical system becomes like any producer of public goods-it has to ensure effectiveness in delivering justice. And effective means enough of it, at the right time, to the right people and at the right cost.

Right now, the Indian Judiciary has failed its consumer on all fronts. India, a democratic country that provides the rule of law through its Constitution, does no such thing on the ground. It is routine to be threatened with the logjam clogging the courts, even Judges have been known to mention the harassment of lengthy court process to browbeat litigants. The current system allows the rich and the powerful to delay justice. No institution of Indian democracy short-changes its consumer the way our legal system does; ok, maybe the political system is worse, but all that is about to change.

No Western judiciary is structured like this. The closest is the American Jury, which contributes a 'public voice' through eminent citizens who are posted on the Jury. India can show the way, and leapfrog improvements to the digital age. What recommends such a structure is that it allows an experimental, modular structure....you can experiment with a single Court in a small city and scale up if you see the model working, Modify it as you go along, but at least, there should be a clear acknowledgement that all is not well with the Indian Judicial system.

The author teaches, trades and writes at spandiya.blogspot.com.

This column appeared in the September 2014 Issue of Wealth Insight.