Thursday, May 05, 2016

How specialised fast track courts can speed up the Indian judicial system

The judicial system needs to start using technology more intelligently. There is a lot of data which is generated by the courts, and data analytics can be used intelligently in order to shed light on what the reason for the ever increasing back logs is.

What kind of cases are getting backlogged ? And why ? Is the interpretation of a section of a particular law a major bone of contention ? Where are the back logs the most ? In a particular district ? Or in of a particular court ? Where are the bottlenecks ? Which judges seem to be hopelessly slow ? And which ones are doing the best job at delivering judgments expeditiously ?

This is information which should be put in the public domain , and citizens and lawyers should be asked to contribute solutions as to how to deal with some of this backlog. We'd be able to identify whether some courts are more efficient than others, and then try to figure out why. I am sure this is stuff which the legal community knows informally, but it needs to be discussed more openly, if we want the judiciary to become more accountable. I agree it will create problems, because no one likes to be at the lower end of the spectrum, but this kind of sharing will help everyone , as the less efficient judges could learn from the more efficient ones.

Why do we pretend that all judges are equally good ? We all know that there are differences - and it's important that the not-so-good ones get to learn from the better ones. Perhaps the names could be hidden, so as not to embarrass the laggards , but if the information is openly shared, then people can apply their collective wisdom to think of clever solutions. This information already exists within the system - we just need the courage to share it openly.

We need to slice and dice this data and encourage people to ask intelligent questions so that we can come up with clever answers. Why is there so much variability between the judgments of certain judges ? Which judges get their decisions reversed all the time ? After all, if we want transparency in the medical profession, then why shouldn't we demand transparency in the judicial profession as well? We want doctors to report how many cases they do; how many of their patients survive; and how many of them die. Hospitals need to do this as well, if they want to be accredited and certified. Why shouldn't we demand this of our judges as well?

And the same rules should apply to lawyers as well. For example, their win-loss track record should be shared so that clients can make a better-informed decision as to which lawyer to select. How long do they take to get a decision ? How many times do they actually appear in court ? How many times do they depute a junior ? How many cases have they taken on ? Analysis of these records will allow clients to select the lawyer who is right for them; and for the judiciary to track which lawyers use delaying tactics to clog up the system; and which ones are efficient and effective. All this is the staple fare of judicial gossip, but why should this information remain secret, so that only a select few are privy to this ? Why shouldn't it be shared publicly ? This will incentivise lawyers to get their act together; and will also help clients to see which lawyers are overbooked and too busy to pay attention to their case, so that they don't waste money on them. This will help to improve the performance of the judicial system, when judges and lawyers know that the world is looking at how well they're doing in comparison with their peers.

For example, this data could be used to set up fast-track courts to deal with specific problems. Many cases which clog the system are very similar - they are often disputes about the interpretation of a specific section in a particular law. It then happens that one judge gives a particular decision , and another judge gives a completely different decision, which can get very confusing. Of course, this is great for lawyers, because then they can cite case laws , and argue in front of the judge, who also love this kind of intellectual debate. However, it's not really helpful for the litigant. After all, you want a system which is open and transparent, so that litigants have a high chance of being able to predict what the outcome of their case will be , rather than be shocked and surprised at each turn.

Thus, we could set up fast-track courts , where you would have a specialist judge who would look at all the cases of a particular kind - for example, electrical disputes in the city of Mumbai. If these were all grouped together and brought under one roof, imagine the amount of efficiency you would be able to create . The judge would become a specialist very quickly in that particular field because he would know the law backwards and forwards, and no lawyer would be able to confuse him. He would be consistent, and would provide similar opinions in all the cases. This would allow for a lot more replicability and predictability in the system, so that litigants would know what to expect, as a result of which there would be much less reason for them to be dis-satisfied and go into appeal.

Citizens themselves would feel far happier, because they could see that justice was being meted out fairly, because similar decisions were being provided to all the litigants , based on the facts of the matter. This would be more fulfilling for the judges as well, because they would acquire a lot of expertise and depth in one particular field. We do this with the Income Tax Tribunal , where we have specialists in finance deal with contentious tax issues, and they have done a good job in this field. Why can't we apply this to other areas as well ?

Today, we have the technology to be able to determine what the key issue in any given case is, by using algorithms to parse the text in the petitions. These could be then assigned to a particular court, instead of the litigants to join the queue and wait for their turn to arrive - which can often take months. This will help to clear the backlog, and allow the judge to process cases much more efficiently, since most cases would have very similar issues. This kind of transparency and efficiency will help everyone to become happier.

Why not have specializations for judges? We already have this for lawyers , some of whom practice only in one particular field. Why can't we do this for judges as well? This will help the system to become far more efficient . Justice would become far more predictable, because litigants and lawyers would be able to study all the judgments which that particular special court has delivered in the past , and have a much better chance of predicting what their chances of winning are. They wouldn't have to depend upon legal gossip or lady luck, and wouldn't have to waste time searching the archives of hundreds of cases from all over the country , most of which will provide completely differing results and end up confusing them.

 Why do we expect judges to be masters of all the laws? This is not something which makes any sense to me. After all, just as doctors specialize, why can't judges ? You don't expect a neurologist to treat a patient with heart disease, do you ? In the past, we divided cases into civil and criminal cases. We now have the technology to become far more granular in our approach, and we should start doing this ! For example, all the cases which deal with a particular law should be addressed in a court which specialises in handling this. If we have specialists in medicine, why do we expect all judges to remain general family physicians ? There are judges who enjoy judging cases in a particular area , because they have a special interest in that field, so why not let them do more of what they are good at? I'm sure there are many areas which bore them, which they'd rather not be bothered with, so why force them to provide judgments in that field ? What's happened today is that most judges are forced to become a jack-of-all-trades , and master of none. This is really not fair either on them or on the litigants.

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