Courts need business process reform

The crisis situation with judicial burden is occupying a high mindshare in the policy space and public discourse - perhaps thanks to the "emotional appeal" by the Chief Justice of India, which was misreported widely as an "emotional breakdown". While the symptoms of the crisis are obvious, the diagnosis of what ails the justice system is by and large adversarial.

In the bureaucratic ecosystem, you would mostly hear about judicial delays being caused only because judges are allegedly no good - "who are they to beat us up when their house is not in order?" In the political ecosystem, you would hear the more simplistic and populist line about how judges are not accountable - "judges take vacation when courts do not function". Among judges, you would hear the refrain of the low per capita judge ratio in India. However independent of the executive government, the judiciary is dependent on the executive for approval of bench strength, and even more, on appointing judges to fill the sanctioned bench strength. There may be grains of truth in each of these dimensions. But there are never just two sides to any story. There are many sides to every story, and the story of justice delivery problems is no exception.

In justice delivery, there is a critical operational element of business process that needs undivided and focused attention. Today, approaching a court to initiate proceedings provides an experience not too different from approaching a state-run hospital for medical treatment. This has nothing to do with judges or their judicial capacity or their legal acumen. It has everything to do with figuring out how the sheer business process of service delivery needs thorough reform.

Procedures and processes for filing and getting a case up for hearing vary from court to court. Even two courts of the same constitutional standing - say, high courts of two different states - have varying processes in their rules. Even within the same high court or the Supreme Court, each judge can impose her own approach to business process. For example, some judges would rigidly disallow any "mentioning" of a case out of turn for urgent hearing, while others would freely allow such interventions and that, too, for a good part of the day, eating into pre-scheduled hearings. As a result, to get work done, there is no real schedule worth the name - everyone necessarily has to accommodate everyone else and the system keeps moving along, focused on averting disasters, as against being focused on doing a simple day's job of scheduling cases and resolving scheduled cases.

A number of purely procedural matters - such as fixing dates for filing of replies and rejoinders and permitting extensions of time for the filing - are conducted in open court by judges. This is low-end work and judges may benefit from having dedicated and empowered court registry staff to enforce these deadlines. The tyranny of information technology can ensure there is no corruption in the process. Indeed, exceptions would need to be made and when exceptional circumstances present themselves, one may provide judicial attention and discretion. But today, that is the rule and not the exception. If issuance of passports can be made bound by tyrannical process rules governed by information technology, there is no reason why allocation and resolution of filing processes cannot be made efficient.

Resource planning of the court's back office is another area, which is not judicial work, but is work for process administrators. The human resources involved in running a court, how to plan for them, how to recruit, how to monitor performance and reward or punish, are purely administrative matters. Real estate resources involved in expansion of court space, infrastructure for the back office, efficiency in business process administration for consumers of justice, too, are administrative matters. Lawyers and lower judiciary officers who get appointed as judges or court registrars would need training in this space. None is available. Bureaucrats themselves lack the training.

What is the solution? It is time to create a focused corporate body to provide infrastructure support to the judiciary. Such a corporate body may be entirely state-owned. Its governing board may comprise a majority of judges, particularly those who have a nose for systems and processes. A minority representation on the board could be very senior and responsible bureaucrats. The board should oversee a management team comprising process engineering experts who know how to design and implement delivery by a service delivery organisation. The UK has a corporate body called Her Majesty's Courts & Tribunals Service, which focuses on providing resource support for justice delivery round the year - modelling statistics to project the expected workload, planning how much more recruitment and how much more real estate is needed.

This is how any public infrastructure utility - be it an airport, a rail terminus or a public hospital - can be run. These are the utilities where failure by the State in service delivery is now legendary. One cannot expect magic from judges sitting longer, or getting more judges appointed. If one is bogged down by the giant machinery of an inefficient and non-homogenous system, we would multiply all new efforts by zero. The political economy can keep revelling in dramatic finger pointing and counter-allegations. It would mean nothing to the consumer of justice.

The author is a partner of JSA, Advocates & Solicitors. Views expressed are his own.

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Email: somasekhar@jsalaw.com