Cause: Reducing Judicial Delay in India

***Disclaimer: While judicial delay (defined later) exists across developing (and developed) countries, this post restricts its focus to India. However, the note provides a generous list of solutions applicable across jurisdictions that follow the Common Law Principles.

Also, as I’ll frequently mention in the subsequent sections, experimental research on this issue remains limited. This regret is not an original contribution of this note, and I’d refer the readers to Greiner & Matthews (2016; R) and Lynch et al. (2020; R) for a more extended discussion. Social science takes time to advance, and while experimental studies remain the gold standard, this note relies on various non-experimental and survey data to make its case. To stay transparent about the strength of the evidence, I would label every citation using the following scale:

MO: My guesstimate opinion

EO: Expert opinion—refers to statements made by lawyers or judges about the legal profession wherein underlying facts could not be independently verified. These statements might be made to the press, researchers or to the public during meetings, lectures, and (in one instance) an observation made in a court.

EX: Experiences—refers to literature that relies on interviews and qualitative studies with small groups of victims, culprits, plaintiffs, lawyers, or judges. The statements or conclusions must strictly pertain to the experience of the individuals and not the system at large.

R: Reviews and Summaries

Q1: Non-experiment, survey-based studies

Q1A: Non-experimental, administrative data-based studies

Q2: Quasi-Experimental Studies

Q3: RCTs ***

Summary:

Over 42 million cases are pending in India’s legal system. Roughly 10% of these cases were instituted more than a decade ago.
While the obvious solution to the problem—increasing the number of judges—does (should) not involve philanthropic intervention, the global aid agencies can adopt a multi-pronged strategy to help reduce judicial delay at the margins.
Better legal aid, training for lawyers and judges, supporting technology development, promoting Alternative Dispute Resolution (ADR), and encouraging embedded experiments remain crucial levers to help reduce judicial delay.
Reducing delay could potentially have significant social, political, and economic benefits.
Research on this issue remains fragmented and opinion-driven.
A lack of figures should never discourage a keen, dataphilic eye—the critical issues in this field remain unexplored, providing fertile ground for researchers from various disciplines to experiment with newly available data sources. More importantly, it provides an excellent opportunity for embedded experiments—collaborations between researchers, donors, and policymakers to experiment at scale and reduce the time to deployment for successful approaches.

Introduction

As of writing this post, over 42 million cases remain unresolved across India’s judicial meshwork (National Judicial Data Grid, 2022; Q1A) - comprising three tiers of courts, a litany of tribunals and quasi-judicial bodies. Of these, over 10% of cases haven’t been concluded in more than a decade (Q1A), while several others would reach the grim pendency milestone shortly (MO). While disposing of these cases constitutes a daunting challenge in itself, estimates suggest that accessibility and affordability of justice in India remain low (World Justice Project, 2021; Q1), raising questions about the legal needs that never see their day in court.

The burden of India’s third pillar of democracy is shouldered by under 25,000 judges (Q1A) who sit in poorly ventilated, dilapidated and overcrowded courtrooms across the country (Chandrashekaran et al., 2019; Q1). Of these, over 22,000 would occupy the district courts of India—the lowest rung of the judiciary and the citizenry’s primary point of contact with the legal system. A bulk of them started their career as a judge before they turned 30 (Mandhani, 2020; Q1A), pointing to their relatively shorter stints as advocates, paralegals, or members of the behemoth legal system in other capacities. An under-resourced judiciary and an overwhelmingly legally-inarticulate clientele for justice provide a fertile ground for ever-lasting cases, translating into the systemic rut called judicial delay.

For this note, I define judicial delay as the time a case takes to reach its conclusion in the court above the time it should have taken under some alternate, more ideal system. I’ll try to blunt the vagueness of this definition with some numbers. The (now defunct yet painfully influential) Doing Business Reports’ swan song data (World Bank, 2020; Q1) suggested that it took over 744 days to resolve commercial disputes in India’s capital, compared to 370 in New York City and 120 days in Singapore. Clearly, a significant proportion of the 744-day timeline reflects the judicial delay in urgent need of a trim.

The note aims to demystify this mammoth problem by adopting the ITN framework, providing clear guidance on why this problem deserves greater attention from the world’s biggest donors and laying down some viable solutions. I begin by elaborating on the Importance of this issue—a relatively minor undertaking when compared to the task of justifying its neglectedness or tracing out its tractability.

Importance

Reducing judicial delay in India is essential for three reasons.

First, the continued pendency of cases has considerable financial implications. A variety of studies suggest that judicial pendency leads to poor enforcement of contracts, thereby reducing capital investment (Rao, 2021; Q2), shrinking the pool of viable economic transactions (Boehm & Oberfield, 2020; Q1), inhibiting the supply of credit, and limiting the growth potential of the country and its sub-regions. Consequently, mechanisms to reduce delay in the judiciary would have direct economic implications for the country, which, by some estimates, might reach 0.5% of the GDP (India Justice Report, 2019; Q1).

Second, a prudential reason to reduce judicial delay is to maintain people’s faith in the institution and the democracy at large. The judicial system represents the citizen’s only recourse against the injustices of their neighbor or their government. An inefficient and unyielding legal system might do little to enhance an individual’s commitment to democratic processes—worsening the global crises of faith faced by democracies in the preceding decade. It is necessary to support and improve the functioning of “democratic institutions” in the world’s largest democracy to reverse the tide of dissatisfaction with this form of government globally (Hyde, 2020; R).

Third, an efficient judicial system might help eliminate some of the traditional, oppressive purveyors of justice that thrive unabated across the country. Take, for example, the khap panchayats. These institutions exist in certain northern states of India (like Haryana and Uttar Pradesh), and issue diktats that might shape local social outcomes. For example, these diktats prevent consenting adults from marrying each other on different grounds, in contravention of laws that explicitly prohibit such restrictions. The couples who do not obey the orders are frequently burned or beaten to death. In addition, they are commonly believed to uphold patriarchy through their pronouncements. (Kumar, 2012; R) The existence of such informal legal organizations whose judicial philosophy departs from that of the state is commonplace in countries with a weak legal order. An efficient legal system would lower the need for such institutions and might even crack down on the tendencies to circumvent the laws of the land.

Neglectedness

Clearly, the importance of reducing delay in the judiciary is relatively high. And yet, as I will show here, the neglectedness of the issue remains surprisingly high too. For starters, the issue remains neglected by the government, as evidenced by their unwillingness to fill existing judicial vacancies or create new judicial positions at all levels. The government’s own Economic Survey estimates that the country needs an additional 2400 judges in 2018-19 (Economic Survey, 2019; R) to tide over its delay issues, but little has been done to address this human resource gap in the intervening years. While this might tempt some aid agencies to fund these minuscule positions for eternity, this is certainly not the goal or the recommendation of this note.

Another dimension of neglectedness comes from the access to legal aid—provision of free legal consultancy and services to those who cannot afford the services—by governmental and non-governmental actors. The provision of legal aid is directly related to the issue of judicial delay for several reasons. Most importantly, not all people end up in front of the court of their own free will. Some land there in response to legal action by other parties, thus necessitating access to lawyers. In the absence of such access, the cases might be postponed due to the lack of counsel. In other instances, the incompetence of the court-appointed counsel might turn into a reason for delay. Estimates from Delhi’s High Court suggest that over 80% of all adjournments in the court were at the behest of the counsel (Chandrashekaran et al., 2017; Q1).

The governmental neglect, unsurprisingly, extends to this domain. While over 80% of India’s population is statutorily eligible for legal aid, only 15 million people have received any legal aid from the government-operated NALSA (National Legal Services Authority) in the 27 years of its existence (Patnaik, 2022; Q1A). A comprehensive elucidation of the woes of government-provided legal aid is beyond the scope here, but a two-report by Commonwealth Human Rights Initiative (CHRI, 2018; Q1A) might be helpful.

(MO, more like calculations) The non-governmental access to legal aid remains fragmented in its own ways. While India’s NGO Directory, maintained by Niti Aayog, mentions over 21,660 NGOs under “Legal Aid and Awareness”, this number is misleading in more ways than one. First, the directory is seldom updated, leaving it vulnerable to the funding winter that seasonally engulfs many smaller and localized NGOs. Second, an analysis of sectoral causes embraced by these 20,000 “legal aid and awareness” NGOs suggests that, on average, these NGOs report 23.7 additional causes of interest. Not a single NGO reported legal aid as its sole cause in the sample, highlighting that providing legal aid is often a secondary task of many NGOs who operate on other priorities. Often, they might limit their legal functions to mere awareness, further curtailing available legal aid below the expected size.

And just like the judges, legal aid provision has its own human resource issue. It is common for this aid is provided by retired judges or advocates, who, given other commitments, might have limited capacity to take on multiple cases simultaneously. For example, the average age of a panel lawyer responsible for legal aid provision in Telangana (one of the fastest growing states in India and also one of the few with age data on panel lawyers) is upwards of 44 years. Thus, the current legal aid landscape is dotted with fragmented institutions, supported by few and under-productive advocates. To add to this, financial compensation for legal aid cases remains woefully inadequate, pushing several advocates within the legal aid framework to unduly burdening their clients with requests for payments.

To those searching for the role of the donor community in reducing delay, the discussion of legal aid provides the first lever through which the international aid agencies might turn down the dial on delay in the system. Competent, motivated, and financially well-compensated lawyers with contracts designed to discourage lengthy legal proceedings might go a long way in reducing delays in Indian courts. This, hence, provides a neat segue into the tractability concerns.

Tractability

What is the potential set of actions available to reduce delay? Do they work at the margins, or do they really push the envelope to reduce judicial pendency? At the outset, it is amply clear that solving the judicial rut might possibly rely more on the government than a typical cause supported by Open Philanthropy. And yet, almost any cause can be jeopardized by vagaries of politics and institutions, and I do not see how the risks involved here are any different from, say, the relationship between donor goals to reduce air pollution in South Asia and the government of India’s decade-long push to increase coal usage and deepen electrification.

WHAT CAN A DONOR DO?

“Our processes need not be as old as our principles”

-Justice DY Chandrachud

LEGAL AID

I have previously explained how lack of legal aid and access to competent lawyers impacts judicial delay. When a bunch of respondents lack competent counsel, their cases linger on for years, clogging the judicial pipeline. State-supplemented legal aid remains ineffective, and lawyers frequently as dirt-poor plaintiffs for large amounts of money to appear in front of courts on their behalf. A donor X can appoint and retain lawyers at market prices to provide legal aid. This is an expensive affair—Glassdoor’s (Q1) figures suggest that lawyers earn Rs. 32,000 ($400) per month, excluding bonuses and commissions. The donor X can save money by designing contracts that balance incentives to dispose of cases promptly while encouraging them to take on an optimal number of cases.

What is the cost-effectiveness of retaining lawyers? We do not have data to answer this question, but I present a formula below.

Assume that it takes X years to prevent a person from landing in jail for Y years. The most conservative estimate of the benefit is the person’s wage W times the number of months he would have spent in jail. Hence, benefit is above 12WY. The cost is a lawyer’s X years of wage, divided by the number of cases fought by the lawyer in that time, that is, 12XW’/N. To this, we also need to add expectations. Let p the the probability that the accused might have avoided jail time in absence of the lawyer, and p’ the probability of avoiding jail-time with a lawyer. Finally, during the course of the proceedings, assume that the accused can only earn a fraction aW (a<1) of earnings that he might have earned otherwise (the loss earnings might come from leaves taken for court appearances, possible denial of bail, or the lack of job opportunities for someone accused of crime). The cost-effectiveness, hence, is:

((p’-p)*WY)/((W’X/N)+(1-a)WX)

It is crucially dependent on the ratio Y/X—the ratio of jailtime avoided, to the time taken to dispose off the case. Of all the required inputs, a Randomized Controlled Trial (RCT) is best suited to determine p, p’, X and N.

TECHNOLOGICAL IMPROVEMENTS IN NON-PROFIT LEGAL AID PROVIDERS

Technology can complement the human capital in legal-aid organizations, helping them delegate certain tasks to smart applications. This might help existing organization to take on a larger caseload, improve their efficiency, and possibly attract other advocates to this field. Legal-aid organizations have a host of technological needs. I provide three distinct examples below:

Providing grants to purchase and access existing legal technology—Grantee A can provide grants to buy subscriptions to legal databases like LexisNexis and Westlaw. These databases help lawyers in building their case by providing access to data-driven research, high-quality publications, summaries of prior related cases etc. While there are no experimental studies measuring the effects of specific databases or their ability to reduce the burden on lawyers, surveys suggest that (i) most law firms use these services generously, and (ii) most users claim to benefit from access to services (Lex Machina, 2022 - Q1 - conflicts of interest abound).
Providing grants for building software tools to better manage their human resources, finances, caseload, scheduling, etc. - Here, the grantee provides grants to hire software engineers to design simple websites, and workflow and human resource management tools for smaller legal aid organizations. Technological adoption has been shown to improve productivity in a variety of settings like agriculture and industry. However, their effectiveness in legal domain remains unexplored.
Funding the development of AI and ML applications focused at improving productivity among legal-aid organizations: The legal community has witnessed a rise in the use of AI/ML/Natural Language Processing-based applications in predicting case outcomes, drafting arguments, completing legal paperwork, and conducting case-research. While experimental evidence on the efficacy of these new technologies remains scarce, it is clear that most of these technologies are being targeted at top law firms. Thus, the technologies in the market focus narrowly on cases of interest to law firms, like tax administration and bureaucratic compliance. Legal-aid organizations have very different needs. Thus these technologies and applications are less suitable for their functioning. A donor can invest substantial sums into startups, research groups and foundations geared towards building legal technologies in the predictive domain with a focus on cases and laws most beneficial for the legal-aid organizations.

ARBITRATION

A more direct way to reduce the pendency of cases in the judiciary is to advertise and fund arbitrations. There is a huge scope for arbitration in India largely because over 60% of civil cases in India are fought against one’s own family or close relatives (DAKSH, 2017). However, the knowledge arbitration mechanism remains low and the number of people trained in arbitrations (both lawyers and arbiters) is uncertain. Often, lawyers might have incentives to discourage arbitration, especially if their primary pay is determined by the number of days it takes to dispose a case.

While this might not be universally true, India has a very enabling legal environment for arbitration. An interested donor can do the following:

Run advertisements and campaigns to spread information about arbitration as a mechanism to address legal problems.
Train lawyers and arbiters in the procedure, as arbitration is not usually a part of the law school curriculum in India.
Provide financial incentives to parties and lawyers to choose arbitration to settle their disputes, especially if the dispute has dragged on for a certain number of years.

LEGAL LITERACY

While philanthropic initiatives promoting financial literacy are reasonably funded (banks, for example, might devote their Corporate Social Responsibility Funds towards these programs), we do not have similar initiatives in legal literacy. Often, individuals are clueless about how to face the legal system. For example, in the US, Alissa Fishbane and her team (2020; Q3) show that a significant percentage of people charged with low-level offences miss their date in court, even though this leads to a non-bailable arrest warrant against them. In India, over a third of all criminal cases in courts are filed under a single section—The Negotiable Instruments (NI) Act—which essentially refers to “cheque bounce” cases. In 2018, the non appearance rate in these cases was 69% (Damle et al., 2022). Again, as in the previous example, non-appearance is a potential ground for a non-bailable arrest warrant against the person. In a third instance, the number of pending challans (fines) and cases across traffic courts in India is on the rise, again largely owing to non-appearance.

(MO) I believe that while malign intentions contribute to these numbers, it is also possibly true that a lack of legal literacy and a full understanding of legal outcomes of non-appearance might exacerbate the aversion to court appearances. This undoubtedly increases the administrative burden of the court, significantly slowing down the legal machinery. Hence, a donor providing legal literacy through campaigns or in-classroom instruction would possibly reduce judicial delay.

ENHANCING QUALITY AND QUANTITY OF LAWYERS

Roughly 1 in every 1000 people in India are lawyers, far below the USA’s (1 in 250 people) ratio. However, this is not an unusual number. Countries like Japan (where only 1 in 5500 people are lawyers) have fewer lawyers than India but still manage to run efficient legal systems (Kanz, 2011; Q1A; old data). Does the quantity of lawyers affect judicial delay in India? It is really hard to say.

However, we must couple this fact with another pronouncement from the chairman of Bar Council of India (BCI) - the apex body that mediates advocate affairs in the country. According to him, 30% of lawyers practicing in Indian courts are “fake” (Subramani, 2015; EO) - a word potentially used to hint at the abysmal nature of their training. Does the quality of lawyer matter for judicial delay in India? If we go by the example of studies from other common-law countries, where lawyers bear the burden of expressing the facts of a case, lawyer quality is crucial to case procedure and outcomes. A non-exhaustive list of references includes Johnson (2001; Q1A) and Szmer et al. (2007; Q1A).

An ambitious donor can do considerable good by providing upskilling lawyers through funding non-expensive training sessions. The likes of professional training programs are not uncommon among the pool of interventions used to improve health outcomes in LMICs.

EMBEDDED EXPERIMENTS

All the interventions listed above are especially suited to evaluation through Randomized Controlled Trials. Donors looking for new causes must invest in RCTs in this domain, evaluate cost-effectiveness, and prepare judicial delay as a “cause of the future” to ensure that we have better data to write a Cause Exploration Prize article on this issue a decade from now.

However, enterprising researchers might, in the meantime, turn towards embedded experiments—large-scale experimentation embodied within the delivery of programs. I list a few avenues where such interventions are feasible:

NALSA’s (National Legal Services Authority) programs like providing legal advice and legal aid to undertrials.
Gram Nyalayas—Panchayat-level legal bodies sanctioned under law but remain dysfunctional.
Lok Adalats—Informal court sessions where large volumes of cases are discharged on a single day. These are held frequently across the country, but often their conduct mimics the courtroom proceedings, limiting their effectiveness.
Technological Interventions like Virtual Courts, among others.
Behavioral and Incentive-driven interventions like changing court fees, consistently reminding the lawyers about the burdens of adjournments, etc.

As embedded experiments are carried out with the administration, they reduce the time to deploy successful policies. Donors and researchers should make inroads within the legal community to collaborate on such experiments in India and elsewhere.

LACK OF LEGAL PREPAREDNESS AND IN-HOUSE COUNSEL IN SMALLER ENTERPRISES

Too many enterprises only hire lawyers when a dispute turns into litigation.

TOO MUCH LITIGATION?

It is common for readers, especially those from developed countries, to read the suggestions and worry whether these interventions might lead to too much litigation. However, available evidence suggests the opposite—India’s legal needs remain unmet, and those cases that see their day in court stay there for years. Frivolous litigation is a colonial narrative—in the pre-independence era, every case in civil laws purportedly built for the British masters was seen as frivolous (Baxi, 2007; R). Even today, eminent lawyers are likely to blame frivolous lawsuits for delay (for example, see Dari, 2021; EO). Unfortunately, some might rely on anecdotal evidence from their own law firm. While the number of frivolous cases is a first-order concern in reducing judicial delay, India remains far from the litigious frontier, possibly dwarfing its importance compared to other issues.

The note is incomplete and imperfect. I would love to hear your comments on the cause area and the content of the note.

References

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