Sunday, February 22, 2015

How to make courts work?

by Pratik Datta, Ajay Shah.

We in India are proud of the way elections are conducted. We are ashamed of the way our courts work. The problem of judicial delays in Indian courts is well-known. Delays are a significant contributor to India ranking 186th in "Enforcing Contracts" in the Doing Business Report. Studies have shown that court efficiency has a bearing on economic activity, making our record on delays a serious cause for concern.

There are many initiatives presently underway, which seek to do `court modernisation' using computer technology. We argue that most present initiatives are poorly designed. Simply computerising the existing processes of courts will not give us better functioning courts.

A recent example: Computerisation of court records

One example of superficial application of technology to courts is the Supreme Court's e-filing process. This has a few problems.

The Advocate-on-Record (AoR) doing the e-filing is notified online of the defects. He is supposed to rectify the defects and ultimately submit a hard copy. The requirement of a physical document defeats the very purpose of e-filing.

Physical filings cost less than electronic filings. This should be reversed.

Most important, the e-filing system merely injected some computers into existing court processes without fundamentally rethinking the design of the existing processes. This yields low, zero or negative gains.

Business process engineering

A court is an organisation made up of various components: judges, advocates, registry, IT team, accounts department and so on. Each component interacts with the other in a consistent pattern: each gets an input from another, processes it and delivers an output. Failure of one component to deliver the right output results in delay. For example, when a matter is filed, the advocate provides an input in the form of a petition. The registry processes the petition, reviews it and fills a checklist and delivers an output - often a checklist of filing defects. From this perspective, a court is just like any other firm. The experiences of firms in business process re-engineering from the world of firms are relevant to the objective of building better courts.

There is enormous global experience with business process re-engineering in firms. Three main lessons can be identified:

  1. The superficial sprinkling of technology on top of legacy processes yields low, zero or negative gains.
  2. What is required is comprehensive redesign of processes, utilising the possibilities of contemporary technology.
  3. Rolling out such comprehensive transformation is difficult. It will be resisted by erstwhile staff who are set in their ways. These initiatives have to be owned and championed by the top leadership.

Business process re-engineering of Indian courts should start with time and motion studies, to look at how air time of courts is used, and abused. This should then lead to a brand-new design of how the court room functions. There are many global initiatives which can give ideas in this regard. Indian IT and consulting teams have done a lot of overseas work, and have global state of the art expertise in process engineering. We should tap into this talent pool for building world class courts in India.

In the mind of a BPR person, the foundations of the thinking are the work load (how many customers show up per month) and the capacity which is required to serve them. This is simple division: How many man-hours of a court room does it take to serve one customer, and hence how many court rooms do we need? This also leads to the question: How can the man-hours used by one customer be reduced? These elementary sizing calculations do not take place in the judiciary today. Courts are built with no regard for the anticipated case load, nobody knows how many cases will show up, and all that happens when queues build up is hand-wringing. No Indian IT/consulting professional would accept such lassitude, but the legal fraternity has become used to treating delays like death and taxes.

Integral to the new system should be an instrumentation mechanism, through which fine grained data is made available about the working of the new processes. This can then be used to kick off a continuous spiral of process improvement. In other words, a brand new process should not be seen as a one time reform. Integral to the one time reform should be a process of continual measurement and refinement.

This kind of thinking has been used with courts before, elsewhere in the world. Here are some examples. The National Center for State Courts in the US has done extensive research on this. Software have been developed to manage court business processes across jurisdictions (some examples are here and here).

Why do our courts work badly?

Expert committees have played an important role in policy making in India. However, in the past, court automation committees have usually comprise of judges, lawyers and registrars. All these persons (a) Lack knowledge on business process engineering (example: the composition of the Supreme Court e-committee) and (b) Are invested in the present ways. They have succeeded and risen to the top of the profession under the present arrangements, and tend to treat the present system as broadly sound.

Contrast this with an example of a successful re-engineering of business processes in another wing of the government - the Income Tax department. In his 2006 Budget Speech, the then Finance Minister declared that the IT department will undergo process re-engineering. Accordingly, a global tender was floated and a management consultant firm was appointed as external consultant for the project. It is because of this extensive project that today income tax returns can be easily filed online.

Projects must start with the mandate of building a world class court, not a mandate of computerising the court. Computerisation committees are typically not given the mandate of redrafting the procedural rules of the courts. For example, the terms of reference of the Supreme Court's e-committee does not clearly specify that it should produce new draft procedural rules. However, the Supreme Court e-committee itself in its Policy and Action Plan Document (2014) instructed all High Courts to take up process re-engineering. Accordingly, some High Courts set up their own process re-engineering committees (see here, here). Reportedly, the High Courts have submitted these reports to the Supreme Court and these have been forwarded to the Law Commission for identifying the best practices. It is unclear whether the result of this exercise will be a fresh set of procedural rules. Moreover, this approach is inefficient as it requires every High Court to reinvent the wheel and leads to the possibility of a differential response from High Courts.

The way forward

We think three ingredients are essential:

  1. The dominant flavour of new projects should be to do fundamental, ground-up process re-engineering, drawing on the tremendous talent pool found in India in the consulting and IT industries. The flavour of the teams should be consulting and IT, and not legal practitioners.
  2. Since we have started out at the bottom of the world, too often, our aspirations are too low. International experiences should be used much more than is presently the case. E.g. consider the example of Dubai. The attitude should be to jump to the top 10 in the world, not go up from rank 186 to rank 166.
  3. We should build scalable systems and institutional arrangements which, once proven in one or two courts, can be rapidly re-applied all across the country.

Some important developments are now taking place in building better courts:

  1. Justice Srikrishna's Financial Sector Legislative Reforms Commission has drafted primary law governing the `Financial Sector Appellate Tribunal' with strong provisions forcing world class functioning.
  2. The Ministry of Finance has setup a `Task Force' to build this Financial Sector Appellate Tribunal.
  3. We may be at the early stages of important new developments in finance with the rise of `Finance SEZs'. The NIPFP concept note on this subject recommends that the agency design for FSAT be applied to commercial courts which would do dispute resolution between firms.


As Fareed Zakaria says:

...when we think about democracy, we should really think about not simply the electoral process but the inner stuffing of democracy, which is the institutions that produce liberty, separation of powers, the rule of law, courts and constitutions and that that inner stuffing is in many ways more important than elections.

The Constitution requires elections. We would be outraged if elections were marred by delays, corrupt staff, etc. The Constitution also requires courts. We should bring that same level of outrage to the failures of courts in India. The organisational capabilities which are used to run elections properly need to be brought into the field of running courts properly. As with free and fair elections, there is no contradiction between efficient management and fairness. All that is required is obtaining a quantum jump in processes. India has made this jump with the working of elections; now we need to do this with the working of courts.

1 comment:

  1. This is very nicely put. Having noticed your preference for comprehensive restructuring/ reforms, it would be important to develop a transition a path from 'what is' to 'what out to be', taking into account what is workable in India. For instance, it would be useful spend some more time on the proposed way forward. What would be costs involved, actors involved, and the what actions (policy/ administrative etc.) would be required to set the ball rolling, given the administrative, capacity and technical limitations country faces.

    A related point from Dr. Rajan's recent address "For instance, a business approval process that mandates numerous government surveys in remote areas should also consider our administrative capacity to do those surveys well and on time. If it does not provide for that capacity, it ensures there will be no movement forward. Similarly, if we create a multiple appellate process against government or regulatory action that is slow and undiscriminating, we contain government excess but also risk halting necessary government actions. If the government or regulator is less effective in preparing its case than private parties, we ensure that the appellate process largely biases justice towards those who have the resources to use it, rather than rectifying a miscarriage of justice. So in thinking through reforms, we may want to move from the theoretical ideal of how a system might work in a country with enormous administrative capacity, to how it would work in the actual Indian situation. Let me emphasize, we need “checks and balance”, but we should ensure a balance of checks. We cannot have escaped from the License Permit Raj only to end up in the Appellate Raj!"

    How to deal with this, which is unfortunately the reality. Also, a subtle reference here might be to his critisism of FSLRC.


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