The Ideas that led to Justice Frustrated

‘I often think about how litigation or the threat of litigation affects people. It takes over one’s whole life. The fear of the lawyers and the courts, the delay, the tension when you have to appear…. It is time-consuming, expensive and nerve-racking.

This quote from Leila Seth’s book On Balance aptly describes the impact of judicial delays – they take over one’s whole life.

While contemplating what DAKSH’s third volume should focus on, we drew upon findings from our earlier volumes and sought to push the conversation on judicial delays a step further. It is now common knowledge that India has over 3 crore pending cases and that cases take years to be resolved, but what does this mean to an individual, a corporation, the government, the judiciary, or even the society at large? How do judicial delays affect the economy? What impact does persistent delay have on the rule of law? Does delay shake people’s faith in the judiciary? These are some of the questions that led us to conceptualise Justice Frustrated and curate a wide-ranging collection of essays on the impact of judicial delay.

Previous volumes on judicial delay

DAKSH published its first volume on judicial delays in 2016. Titled State of the Indian Judiciary, the book broke new ground, as it was the first of its kind in India to adopt a data-driven approach to analysing the functioning of the Indian judiciary. This volume introduced readers to the DAKSH database, the largest public database – and the only freely available one – to analyse the functioning of the judiciary, which now has data for over 3 crore case records and 41 crore hearing records. This volume also highlighted the findings of DAKSH’s Access to Justice Survey 2016, which captured the perceptions and experiences of over 9,000 litigants across the country. The findings were an eyeopener in understanding the costs associated with approaching the judiciary. Significantly, they showed that the loss of productivity owing to wages and business lost from attending court hearings amounts to 0.48% of the Indian GDP. The survey also helped us understand the experiences of litigants and the problems they faced. 

This led us to the ideation of our next pan-India survey, the Access to Justice Survey 2017, during which we interviewed over 45,000 respondents to understand their perceptions and experiences in accessing justice and resolving disputes, whether through the judiciary or through non-judicial forums. One of the questions we asked during this survey was what problems they faced as a result of litigating their dispute in court—28% said they faced threats and pressure, 27% said they faced physical and mental stress, and 7% even said they faced social ostracism. Further, when asked about the costs associated with having a dispute, 45% of those who went to court said that they faced loss of pay or loss of business. When we asked persons, who chose to resolve their dispute through non-judicial means why they did not approach the courts, 27% of them said that the cost of litigation is too high and 17% said that cases take too long to be resolved through courts.

The detailed findings of this survey are published in the second of DAKSH’s books, Approaches to Justice in India, published in 2018. In this volume, we sought to understand the concept of ‘justice’ more expansively—in terms of its underlying ideas, its administration and delivery, as well as the various approaches taken by individuals in India to access justice. Learnings from the survey and contributions to this volume led us to think more deeply about the various kinds of impact that judicial delay has on individuals, society, and the justice system.

Justice Frustrated

Throughout the various discussions and debates on judicial delay and its impact, what we have noted is that the dominant feature in understanding judicial delays on a large scale involves studying the judiciary’s functioning through the lens of either procedural irregularities that stand in the way of a speedy and effective trial or through the perceived lack of an adequate number of judges. However, doing this is to view the problem as internal to one institution—the judiciary—and overlook the ripple effects of its inefficiencies on other institutions and individuals. At DAKSH, we felt that in analysing the impact of judicial delay, we had to go beyond calculating the costs and time spent on attending court hearings to a more nuanced understanding of the cascading effects of judicial delay. We began to question what the side effects of delay are—be it social, economic, and systemic, or physical, psychological, and familial. In doing so, we felt it necessary to look at the impact of delays from the perspectives of individuals, corporations, the government, the judiciary, and even the society at large.

Once we put out the call for contributions, we received many contributions that addressed a wide range of topics ranging from the impact of judicial delay on vulnerable sections of society and their families, to the impact on corporations and the economy, the impact on society, democracy, and the rule of law, and even the systemic fallout of judicial delays. Thus, the chapters in Justice Frustrated bring to light the socio-economic as well other kinds of impact resulting from judicial delay. Keeping in line with DAKSH’s emphasis on using an empirical approach to understand the problem of judicial delays, chapters in this volume also make use of data to provide an understanding of the impact of judicial delay.

The first segment in the volume begins by shining light on the systemic impact of judicial delay on the judiciary itself and on society. The second segment deals with the impact on various categories of litigants—undertrial prisoners, victims of human trafficking, members of the transgender and intersex community, and corporate entities. The third segment of this volume highlights the impact of judicial delay on different types of disputes—arbitration, insolvency, land acquisition, labour disputes, election petitions, and government litigation. We must point out however that although the title of the book speaks of ‘frustration’, it’s not all grim and gloomy in terms of content! The last segment of the volume is forward looking and contains chapters that consider new ways of thinking about judicial delay, particularly on how new tools may be deployed to understand and avoid delays and their systemic impact, on how to evaluate the effectiveness of state interventions, and how new approaches to understanding the impact of delay could help in re-imagining the data on delay.

While each kind of impact of judicial delay could have a book written about it, this volume is an attempt at shedding light on some of the multi-faceted effects that judicial delay has on individuals, entities, institutions, society, and the economy. We hope that this can push forward a conversation to not merely look at judicial delays as one problem, but various resulting problems rolled into one. It is time for all stakeholders to critically reflect on ways to alleviate the many consequences of judicial delays and devise innovative methods to reduce them so that the negative consequences of delays do not continue to persist and grow.

Justice Frustrated: The Systemic Impact of Delays in Indian Courts has been edited by Shruti Vidyasagar, Shruthi Naik and Harish Narasappa, and published by Bloomsbury. The book is available on Amazon here.

 

Shruthi Naik
Shruthi Naik is a lawyer and research associate at DAKSH. Her areas of interest include access to justice and legal system reform. She writes frequently on these topics and has worked on several of DAKSH's projects to analyse pendency and delays in the Indian judicial system.
Shruti Vidyasagar
Shruti Vidyasagar is a lawyer based in Bengaluru, with a diverse legal practice spanning 15 years. She works with DAKSH as a consulting editor, and has co-edited its two flagship reports, State of the Indian Judiciary and Approaches to Justice in India. Shruti also works with leading presses, institutions, universities, and academics to edit articles, reports, and books on law, society, development, and management. She has co-edited a volume of essays titled Leadership and Role Modelling: Understanding Workplace Dynamics, which was published by Palgrave Macmillan in 2018.

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