The problem of pendency in the Indian legal system continues to receive its fair share of attention in 2018, as we saw when the new Chief Justice of India flagged the issue in his inaugural speech. The problem is certainly well-known, but solutions have been desperately wanting. The dominant thread of discussion has been fixated on the infrastructure argument - more courts and more judges - and the clear failure by successive governments to spend the money needed to achieve that goal.
In a new paper uploaded on SSRN - available here - I move away from this dominant thread and contribute to the line of thought which considers solutions can also be achieved by fixing some issues of design within the system. My focus is on criminal cases in the trial courts, and I argue that inherent design flaws are a big reason for slowing down the criminal process. Basically, the process has been designed in a way which pays amazingly little attention to the incentives of the main players - defendants, prosecutors, victims and judges. Instead, it encourages a system where everyone is happiest while opting for a full-dress trial, contributing to the burden on an already overworked system.
While the main focus of the paper is to describe these design flaws, I do make a prescriptive claim on what can be done to help ease the burden. First, install a more active screening of cases filed by the state. Data suggests that the police are filing too many cases that do not hold up in court. These cases take up valuable time and effort and worsen the quality of the entire system. A more robust screening policy by making use of the power of withdrawal for cases, and more active testing of the police case by the judge can go a long way in helping prune the grain from the chaff. Second, I argue that the law must be amended to reduce the opportunities every side has to challenge orders during the pendency of a trial and delay final judgments. This is hardly new, but it remains as pressing a concern in 2018 as it was in 1973, when the Criminal Procedure Code saw wholesale amendments.
Looking forward to comments!
1. In your view, increasing finality at the lower court level and decreasing the number of avenues that a defendant has to challenge orders at different stages, or rather, defining more strictly when a defendant can raise such challenges will help decrease pendency. However, I felt that apart from one stray line towards the end -- "Too much of a good thing can be a problem though" @ Pg. 21/23 -- Your piece does not really address the "quality factor", which is crucial in a system as broken as ours -- where investigation, forensics, prosecution as well as adjusication is of such dangerous quality. On a reading of your analysis, it might seem prudent to reduce these avenues for the defendant, or even to define them more strictly, but the dangerous and practical fall-out of that is something that goes unaddressed.
ReplyDelete2. Though you are careful to admit that there are haves and have nots in the justice system, your analysis seems to be mostly centred around the informed and resourceful defendant (who is supposedly out on bail). Apart from the reality that the uninformed and poor defendant would mostly just go with the advice of the counsel, what's the statistics on the kind of defendants that manage getting bail and the kinds that don't? I'm not sure if that's available but prison stats tell us that the larger number of under-trials or even convicts for that matter are of a certain socio-economic profile and hence the link is easy to make. Would it be in the interest of a poor defendant in custody to prolong the trial? I don't think so. You say that "Defendants would know they have one bite at the cherry...". I wonder how relevant that is in a country where glaring procedural defects go unnotinced for years at various levels and once in a while the Supreme Court picks on it and acquits somebody after 27 years when they shouldn't have been convicted in the first place.
3. Again, I wonder if introducing "case disposal" as criteria for prosecutors and judges would change much. This links back to the quality point and also given that the Supreme Court is known (atleast in gossip circles, if not officially) to list more and more miscellaneous cases recently even on "non-misecllanous days" as opposed to regular matters just to show an increase in "disposal" (because it obviously takes far less time to dispose off a misc matter as opposed to a regular matter), the general lay-person doesn't understand this nuance and is happy that the "case pendency" is reducing and I feel this type of "case clearance" discourse encourages this distorted picture.
4.Why the assumption in Footnote 156 @ Pg. 22/23 that few complainants will challenge withdrawals? Again, I am unaware of statistics on this, but this seems to be a country where whoever has a right to challenge anything, does always challenge it, especially when it is driven by a feeling of revenge or "justice". Just the number of ridiculous and absurd SLPs one sees in the Supreme Court on any miscellaneous day provides anecdotal evidence of this.
Hello. Thank you for such a patient read of the paper and offering such useful comments. I have attempted to respond to them below in serial order:
Delete1. I actually do actively address the quality issue and my other suggestion - to help stem the flow of such poor quality cases - directly addresses that. So yes, reducing appellate avenues alone can seem harsh and I don’t offer that solution alone. However, outside of the paper, I’d still argue that reducing appellate avenues will in the long run help improve the system for the reasons suggested there. Namely, that greater finality helps ensure greater accountability.
2. There is just not enough data to make an extended study of defendant choices qualitatively. I mean I can’t get assess how an indigent person on legal aid is making each call. The one place where this screams at us from the data is plea bargaining and I address that in as much detail as possible. In ongoing revisions to the paper I’ve made this limitation more explicit. Having acknowledged this, I argue that this limitation does not affect the claim that this paper makes - that the architecture of the criminal process engenders delays. It would, I suspect, only help further the model.
3. Case disposal is already a criteria even at the lowe courts. And you’re right about the quality issue here again. Which is why I’m careful everywhere to not suggest that be added either! All I say is that more focus be placed on removing “bad” cases at withdrawals which is a very different claim than disposals per se, largely because here the benefit goes to defendants.
4. That claim is based on complainant participation at the first stage which ends up occurring in withdrawals. But yes I am arguably optimistic about superior courts exercising greater care in allowing complainants to challenge withdrawals and undermine executive discretion.