Court on Trial covers vast ground, only missing things here and there

This review explores the book Court on Trial: A Data-Driven Account of the Supreme Court of India and its call for transparency and modernisation in the Indian judiciary, emphasising the significance of comprehensive workflow data sets in addressing challenges and enhancing public trust.

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Delving into the pages of Court on Trial authored by Aparna Chandra, Sital Kalantry, and William H.J. Hubbard has been an enlightening journey. My perspective primarily stems from an in-depth understanding of globally successful organisations, with limited prior knowledge of the Supreme Court of India.

As I reflect on the book's contents, it is important to raise questions in light of recent technological advancements. In an era characterised by rapid digital transformation, how has the Indian Supreme Court adapted to this changing landscape?

Summary of the book

As the cover page of the book states, it provides a data driven account of the Supreme Court of India. The book analyses several topics centred on how the cases are handled at the court, and in the process, examines how judges themselves are appointed.

The analysis brings out the divergence between the product and processes of the court and what is expected of an ideal judiciary.

The ideal judiciary (my view, not stated in the book) is understood to be a 'tap of justice' where anyone can quickly have a case resolved with clarity and finality for a just result, in addition to being told clearly what the law is so that they know their liberties and constraints.

The expectation of judges in India is that their processes and product demonstrate infinite wisdom, patience, reasoning and detachment.

With these qualities, judges are expected to resolve cases without fear or favour, irrespective of the complexities they present.

The most significant data the book informs and examines is the workload characterisation at the Supreme Court. It highlights the enormous backlog of cases at all levels of judiciary in India, and the resulting dynamics.

When cases are not disposed of in a timely manner, it appears to create a much stronger demand for 'Orders' that offer immediate and tactical advantages, irrespective of the potential correctness of the eventual judgment.

Also read: 173,063: Number of cases that have remained pending in Indian courts for more than 30 years

The book also introduces the reader to two common provisions under the Constitution to approach the Supreme Court: Articles 32 and 136 (special leave petition or SLP). 

Cases under Article 32 are to be based on violations of fundamental rights, while SLP is essentially an 'appeal' which is admitted at the discretion of the court (following a threshold determination of whether there is any merit warranting continuation).

SLP essentially represents the supervisory jurisdiction of the Supreme Court over all other courts or tribunals in India.

The book observes that the court should ideally be resolving more cases under Article 32 and fewer through SLPs. However, it is revealed that only 8 percent of admitted cases present constitutional questions, and 92.4 percent of the entire docket consists of SLPs.

The reader is then walked through significant cases that leave it to the discretion of the Bench as to when to exercise SLP jurisdiction, without laying out specific standards for an SLP to be admitted.

This is explained as the reason for the explosion of cases at the Supreme Court.

The number of cases admitted under SLPs is explained to be very high (14 percent in India versus 1 percent in the US Supreme Court).

The book finally asserts that the data does not support the commonly held belief that SLP jurisdiction is needed to exercise close supervision over severely malfunctioning lower courts.

It particularly points out that fairly little new law (which would then be binding on and guiding all courts in India) is being established by the Supreme Court despite the large number of cases being heard. 

While the book does suggest that the Supreme Court could admit far fewer cases, it expresses resistance from the Bar as a possible impediment to taking that path.

The book raises a fairly pertinent question: why could not the high courts at the state level themselves (perhaps with their internal appeal processes already in place) have the final say in most of the matters the Supreme Court is examining?

The book examines the consequences of the Supreme Court's inability to handle the resulting high workload. The header of one chapter reads, 'Explosion, Exclusion, Evasion: The Burden of Backlogs'. It is worth examining the meaning and consequences of each word in the label.

Explosion has already been demonstrated above in terms of workload characterisation. Exclusion means that the selection of only some cases operates to exclude others, and that differentiation is often left in the hands of the bar and court, with little room to consider objective factors.

Evasion means that given the high case load already present, the court does not answer questions that are not comfortable for the judges subjectively, which goes against the notion that each and every case must be decided without fear or favour.

Also read: Judiciary vanguard of institutional governance, says CJI on Independence Day

In that context, the book asks a very pertinent question about how responsive the court, as the people's court, is to the weak and underprivileged sections of India.

It makes an interesting observation that the number of related cases admitted is high (with a low threshold of difficulty), but the final outcomes do not necessarily demonstrate that such cases get a higher priority or favorable results, possibly because of insufficient interest from able advocates to take up their cause, among other factors.

The book also takes note of exorbitant advocate fees for even 90-second hearings, highlighting the pent-up demand for designated senior advocates who often have 'face value' with significant standing at the Supreme Court, sometimes more often than the individual judges themselves.

The book touches on the role of the Chief Justice as the 'Master of the Roster', who controls the assignment of cases and constitution of Benches.

The chapter discusses the famous incident of January 12, 2018, when four Supreme Court justices, in an unprecedented move, took to the press to point out seemingly improper exercise of control over case assignment by the then Chief Justice.

That incident is noted to have led to the transparent development of publicly disclosing the rostering on the web since then. The chapter distinguishes that kind of improper control with how the chief justices historically have constituted Benches in seminal cases, many times without regard to seniority of excluded colleagues, to obtain judgments favourable to the views they hold.

The book dedicates a chapter to the friction between elected representatives and the judges in controlling the appointment of judges, given the supremacy of the judiciary asserted in the interpretation of the Constitution.

It brings out the widely held opinion of a lack of transparency in appointments by the collegium (which now controls the appointments). The absence of gender and caste diversity in appointments is also highlighted.

Another chapter is dedicated to the analysis of whether judges would 'pander' to the political branches, particularly close to the retirement stage, with a view to securing further employment in other positions with the government. 

A suggestion is made to increase the retirement age of judges, given the increasing life span, as a way to disincentivise possible pandering.

Overall, the book makes several other good suggestions to address each of the topics discussed, and we will leave it to the readers to explore that in more detail.

I simply touch on some topics the book does not adequately develop, particularly given the book authors' vast stated experience with jurisdictions globally.

Misses

While the book provides many interesting metrics on backlog at the Supreme Court, it would have been interesting to see a comparison of the precise 'service levels' that the highest level courts in other countries offer to their people comprehensively in different types of cases. Obviously, the Indian judiciary will want to be competitive with what is happening in comparable vibrant democracies.

Also read: Supreme Court announces National Judicial Data Grid portal for Supreme Court cases

The book describes in detail the significant effort undertaken to 'scrape' data from the court's website and further process it before being used for generating various metrics.

The book suggests that the web interfaces of the court computer systems have been redesigned since then (it is unclear if it has been made more or less onerous to scrape similar data). It would have been nice to understand, on a comparative basis, to what extent 'data sets' are made available by the high(est) level courts in other countries.

The book discusses the opaqueness in the appointment process of judges. It would have been nice to understand the procedures (including the extent of transparency) in different countries on the appointment of judges at the highest level and whether they have similar superlative powers as the Supreme Court judges of India.

The book touches on the high remunerations the advocates at the Supreme Court and high courts in India are able to command. In the context of discussion on appointment of judges and retirement age, it would have been nice to understand how the overall compensation for India judges compares (both when serving as a judge and in their post-retirement stage) to that in other parts of the world.

Clearly, the overall compensation for judges needs to be competitive with global standards, if not with those of the advocates, which should be expected when the backlogs at courts are hopefully cleared at some point in time.

While the book discusses the control of work-flow allocation at a very high level by the Chief Justice as the Master of Roster, it sheds little light on who has minute, lower-level control over the cases heard and not heard on a daily basis, and any related issues on a comparative basis with courts in other parts of the world.

Procedurally, each Indian court publishes a cause list for every day, with the cause list showing the specific cases (and advocates) that will be heard in each court room.

Regarding how cause lists themselves are formed, when a case is successfully filed, courts try to list the case within a couple of days to check for any urgency.

At each hearing, it is generally an open court in which many advocates and parties also follow the dialogue between the parties and the judge. At each hearing  conducted, the case can be advanced in substance up to closure, or one of the parties can seek adjournment on various grounds (including when the advocate is not prepared to argue the case, often when the government itself is a party).

The judge then orally indicates when the case would be heard next with other appropriate Orders. In addition, there is a 'mentioning' mechanism, where advocates line up to ask for the urgent listing of cases, and the judge grants it at their discretion.

All that discretion given to the judges is crucial for the dispensation of justice, and none would probably question the appropriateness of judges having that broad discretionary power.

However, what are also well understood problems are the adjournment practices, significant delays in publication of cause lists (many high courts do not publish cause lists until past 7 pm. each day for the next day), the absence of predictability in a case being listed, and inefficiencies with the cases being reassigned in the middle to other Benches or judges, amongst other issues.

Also read: Judicial appointments: Towards a blueprint for information systems in governance

Once the problems are thus understood, anyone with computer programming background will inevitably suggest the following as necessary part of the raw data sets that the judiciary ought to record and process for transparency and accountability: (A) Any manual interventions that alter the cause lists beyond the open hearings and established procedures; (B) Recording of reasons for each adjournment; and (C) The duration of each hearing.

It should be noted that all of this data is already being entered into computers; the software simply needs to be extended to record the data in a processable format.

In other words, it can be argued there is little additional burden to administrative staff, and perhaps writing of the Orders can be simplified with computer user interfaces.

Once armed with this data, it will be fairly easy to address many of the issues raised in the book, such as: (A) Did the court sufficiently support the weak and underprivileged? (B) Is the listing of cases on a reasonably fair basis? (C) Who (parties or advocates) aides or throttles the court processes by not being responsive? (D) What is the wastage of court time due to changes in Benches or other procedures?

It should be remembered each of the above topics is of significantly more concern given the backlog of cases, which the book has treated exhaustively.  Irrespective, addressing the questions clearly enhances public trust in the judiciary.

Overall, the biggest  value addition of this book is the use of data and simplifying the understanding of the court processes for those without much legal or court background.

It is well-written to keep the readers' attention and make it enjoyable as well. This is a must read book for anyone interested in understanding how the Indian judiciary works and how it can possibly be made to serve the people better.

Consequential questions presented

Addressing backlog by use of virtual hearings-based infrastructure

In an interview at the India Today Conclave 2023, the very first question posed to Chief Justice of India Dr D.Y. Chandrachud was:

Host Rahul Kanwal: Justice Chandrachud, I want to start by asking you straight up about the challenges India's judiciary faces at this moment.

If you look at the number of pending cases in this country there are about 4.32 crore total pending cases, 69,000 of them in the Supreme Court, a backlog of about 59 lakh across 25 high courts.

Could you start by telling us, all of those who are watching you here at the India Today Conclave, watching live on TV and on social media, about your broad vision to transform and modernise India's judiciary?

Justice Chandrachud: Well it is true that we have a large backlog of cases, but another way of looking at it is I think it is reflective of the faith of the people in coming to court in the first place, which is not to justify the backlog.

We should be discharging the faith of the people by being more efficient and by reducing the backlog but that is just an indicator of the kind of faith people have.

It also shows that there is a dearth of adequate infrastructure in the judiciary. Our judge-to-population ratio is not commensurate with what it should be in a country like ours; that is another problem.

The third problem, of course, is the lack of infrastructure in the district judiciary.

But now, coming to your question about my vision, I think what we need to do is completely modernise the Indian judiciary.

Our model for judicial administration has been based on the colonial model which we inherited from the British, which is that people have to access justice. It is also reflected in the design of our buildings— these grand colonial buildings which were intended to create a sense of fear and awe about the court in the minds of people.

And I think that the colonial model now has to give way because 'justice', to my mind, is not just a sovereign function, which it is, but 'justice' is also an essential service which we provide to our citizens.

Part of my mission of dealing with where we should be in the next 50 or 75 years is to transform the Indian judiciary with the use of technology.

We saw that during the Covid pandemic. It was unanticipated, possibly unexpected as well. We could not have shut down the doors of courts; we had to keep our Courts open because we have to answer the needs of citizens who seek bail, their personal liberties are at stake, their lives are at stake, their careers are at stake. So we launched a whole system of video conferencing.

If you would like me to share the data which I have with me, the kind of work which we did on the video conferencing platform during the pandemic is unprecedented in any part of the world.

So my vision now is that now that hopefully Covid is behind us or almost behind us, as we would like to because we all lived in a sense of optimism, we now need to look at technology beyond Covid and we need to modernise the Indian judiciary.

Thus, the CJI clearly establishes the judiciary as providing an 'essential service' as a sovereign function, emphasises the need for significantly more scale and changes in judiciary, discusses how Covid forced the Indian judiciary to deploy new technology, and highlights the general objective of looking at technology beyond Covid.

Incidentally, the CJI himself headed the e-committee that ushered in the changes during Covid. Many courts have continued with video conferencing-based hearings, with some extending to mixed mode hearings (where one party presents physically at the court and the other party joins by a video link). 

While some courts have expanded the practice, it appears that some have stopped the video hearings. Only last week, in September 2023, a Bench led by the Chief Justice issued a notice to all high courts and tribunals asking for an explanation if virtual hearings have been stopped.

Given the consistent backlog across courts in India, it does seem like a comprehensive white paper should be published addressing the extent to which  video conferencing technology will be used to clear the backlog, at least in some identified suitable pockets.

Also read: Judges do make political choices, says Justice S. Muralidhar at the launch of Gautam Bhatia's Unsealed Covers

Comprehensive data sets on judiciary workflows

In the last few decades, various organs of government have relied on computers as assistive tools for their functions, particularly given the increasing complexity and speed at which they are expected to operate.

However, it is a fair assessment that no government organ is keen to open up the underlying data existing in their computers for the assessment of their performance.

Opening up that data for analysis holds huge promise for addressing age-old problems of inefficiencies and corruption, starting at the level of municipalities (which use computers to disperse funds and manage projects).

For a person without technical background, it is non-trivial to imagine what is meant by "workflow data" for the judiciary. It is almost like logging some metadata at every step as the case moves procedurally forward within the computers.

These steps can include filing, clearing defects, case listing, each hearing's start and end time points, advocates arguing, each adjournment, judgement reserved, rendered and appealed, and Orders.

All this data exists in different computers that the judiciary already employs, and the software simply needs to be extended to store the data in processable format.

Clearly, a comprehensive data set is equivalent to processible audit data representing every event as the case moves forward from filing to disposal.

When we tried to find comparable data sets on the internet for courts in other countries, all we could find is comprehensive data US Patent Office published at https://ped.uspto.gov/peds/#/ on their workflows for the entire lifecycle (from filing to expiry to any infringement actions) of the patents they grant.

Once this data  is made available, it aids in a broad range of tasks such as the appointment of judges and measuring the judicial processes for efficiency and integrity.

One can imagine the enhanced public faith when each item in the daily cause list is shown with a code that identifies the trigger (e.g., open court hearing, a judicial rule or mentioning by advocate) for that listing, and when such data can be processed.

The book really brings out the absence of easy availability of such data sets (or audit data), and calls for a white paper explaining the position of the judiciary on comprehensive workflow data sets.