Jyotika Randhawa* and Deepika Kinhal**

The Indian Judiciary is notorious for being slow-moving not only in the disposal of cases but also in the adoption of reforms. The article illustrates that new reforms within the judiciary, from eFiling to introduction of Court Managers, are often met with resistance from within. It argues that the root of this resistance lies in the undemocratic, top-down approach to reforms which tends to alienate key stakeholders and complicate their lives further through underdeveloped, partial solutions. Instead, the article proposes an alternative, participatory approach to judicial reforms that is inclusive of all stakeholders. Such an inclusive approach, it contends, would pave the way for better understanding of ground-level realities, effective solutions and smoother implementation. Finally, the article explores various strategies to operationalise and institutionalise participatory approach within the judiciary.

Introduction

India’s courts have been slow to reform and curiously resistant to change. New reforms have often hit a brick wall due to active and, sometimes, not-so-active resistance from key stakeholders within the system. An apt illustration is the nationwide protests against mandatory eFiling. From Delhi to Trivandrum, lawyers and law clerks have expressed discontent with the compulsory eFiling of cases. Consequently, despite the mandate, eFiling has seen limited usage across courts. Not all resistance is overt, however. The court manager initiative, which was introduced to relieve judges of some of their administrative responsibilities, fizzled out because of lack of cooperation and initiative from the judges and the registry. Similarly, attempts to digitise court records have been slower than expected partly because of the unavailability of technologically proficient court staff but also because of the reluctance of the remaining staff to learn computers. This begs the question – why do most judicial reforms fail to gain traction?

A common thread across all these reforms is that they were implemented in a top-down manner and thus failed to consider ground realities and practicalities. The eFiling module, conceptualised and developed by the eCommittee without widespread inputs from lawyers, its primary users, is riddled with inefficiencies. Instead of simplifying things, it has further complicated filing in the district judiciary. In addition to preparing physical copies of the plaint, lawyers have to now scan and upload multiple documents per plaint for eFiling, effectively doubling their workload. Server downtimes, website malfunctions and lack of adequate training have considerably increased the time lawyers have to spend in filing cases. Further, for junior lawyers and law clerks, whose main role is carrying out filings, introduction of eFiling threatens job security. Due to lack of any structured feedback mechanism, lawyers and clerks have resorted to protests or silent boycott of the eFiling mandate. Courts, however, continue to push the current flawed system onto these resistive end-users.

This trend extends to other initiatives as well. While the court staff are tasked with digitising court records, they are not provided with any avenues to share critical feedback, which results in perpetuation of inefficiencies. Presently, the court staff are required to maintain physical registers alongside inputting the same data into the Case Information System (CIS), which leads to duplication of work and disincentivises technology use. Similarly, the position of the Court Manager was introduced by the Ministry of Finance without any meaningful dialogue with key stakeholders within the judiciary. Consequently, the initiative has failed to achieve its objective of improved court administration. The Court Managers failed to gain the critical support from the judges, who were apprehensive of relinquishing their administrative responsibilities to external parties.

Evidently, failure to engage with key stakeholders in the conception and implementation of these reforms has resulted in misdiagnosed issues, underdeveloped solutions and alienated stakeholders. A participatory approach to judicial reforms would have considerably prevented most of these complications.

Need for a participatory approach to judicial reforms

Stakeholder participation is an integral part of the legislative process.  Introduced in 2014, the concept of pre-legislative consultation requires government departments to release the draft legislation for public feedback for a period of at least 30 days. No such mandate exists for the judiciary. There are primarily two ways in which the judiciary initiates reforms. The first is through committees constituted by the Supreme Court and the High Courts and the second is by issuing judicial orders and directions.

The eCourts project, for instance, which aims to enhance productivity in the judiciary through Information and Communication Technology enablement, is being implemented under the aegis of the Supreme Court’s eCommittee. Several technological solutions such as Case Information System (CIS), eFiling, ePayment, and National Service and Tracking of Electronic Processes (NSTEP) have been introduced under this project. Similarly, the National Court Management Systems Committee deals with and makes recommendations on a number of aspects like case management, human resource management, and court development. Additionally, courts, particularly the Supreme Court, have endeavoured to initiate reforms in judicial administration through judicial orders and directions. In the case of Malik Mazhar Sultan v. State of U.P., the court addressed the chronic shortage of judges at the lower court and prescribed a schedule for time-bound filling of vacancies. The problem of inadequate infrastructure at the lower court was dealt with in All India Judges’ Association v. Union of India, where the court directed setting up of more residential accommodations and working libraries for judicial officers. More recently, in Yashpal Jain v. Sushila Devi, the Supreme court issued a series of directions for speedy disposal of civil cases, including identification and monitoring of long-pending cases.

Both these methods of reform, however, have limited scope for stakeholder involvement. Committees are heavily comprised of judges, to the detriment of other stakeholders in the judiciary. Needless to say, any solutions spearheaded by committees are devoid of inputs from the frontline. eFiling and NSTEP, for instance, were developed without obtaining the insights and opinions of the lawyers and process servers respectively.

While the committees have some form of representation, albeit limited, from the High Courts, and sometimes District courts, there is no scope for stakeholder participation in reforms enforced by judicial orders. Such reforms, even if it involves the appointment of amicus, are primarily an academic exercise undertaken by a few individuals within the confines of a courtroom. There is neither intent nor capacity to undertake meaningful stakeholder consultations. This presents three kinds of difficulties. First, judicial administration is a complex machinery within which judges occupy a specific and confined role. With their limited experience, judges may not be able to grasp the full breadth of an issue, unlike stakeholders with first hand experience. Second, reform enforced in a top-down manner is likely to alienate stakeholders. Lastly, it is difficult to sustain such reforms over the long-term. The schedule fixed by the Supreme Court in the Malik Mazhar case was followed diligently up until the Court could no longer supervise. The success of such reforms, unlike stakeholder-driven initiatives, are subject to supervision by the courts. Therefore, for long-lasting, effective judicial reform, the judiciary needs to move away from exercising its judicial power for administrative reforms and move towards a more stakeholder-centric approach.

Participatory approach, embodied through widespread stakeholder consultations, institutionalised feedback loops and open communication, can help ensure –

a. Accurate understanding of complex issues – Stakeholder inputs help identify pertinent issues that judges, given the specificity of their experience, might sometimes overlook or fail to grasp. For instance, had the district court judges, lawyers and state officials been consulted on the issue of vacancy, the Supreme Court would have realised that the problem is more nuanced than just the laxness of the States in conducting examinations and involves questions about the fairness of the recruitment process, adequacy of incentives and the quality and culture of legal education and profession. Similarly, public consultations on court infrastructure could have helped identify and address many more infrastructure related concerns than were captured in the All India Judges’ Association case.

b. Effective solutions – Practical experiences of stakeholders help formulate solutions that are targeted and feasible. With extensive on ground experience, they are best placed to predict the efficacy of solutions and help navigate potential pitfalls. For instance, consultations with lawyers and law clerks during the development of the eFiling module could have resulted in a more efficient eFiling system free from duplication of work. Consultations with process servers can help the judiciary easily identify certain low hanging fruits for effective delivery of summons, such as changing the timings for service of summons, adopting plain language drafting for summons and allowing thumb impressions in case of illiterate defendants.

c. Ease of implementation – Involvement of stakeholders at all stages of the reform, from planning to implementation, engenders a sense of ownership over the project and encourages initiative. It can also help identify and alleviate fears, apprehensions and negative perceptions regarding change. For instance, discussions with lawyers regarding eFiling would have helped identify apprehensions about digital divide, data security and job insecurity. Accordingly, a strategy could have been devised to allay these apprehensions, including an information campaign and additional support for lawyers from the lower socio-economic strata.

Operationalising stakeholder involvement

One way to encourage stakeholder participation is through adoption of the legislative model of inviting feedback on draft rules and schemes. The judiciary often enacts rules to supplement newly introduced solutions like eFiling, live streaming etc. However, instances of the judiciary seeking and incorporating feedback on the same are few and far between. While a low hanging fruit that may be implemented immediately, this is unlikely to result in substantive reform. For one, this precludes participation of people in the actual planning and ideation process and reduces their role to merely providing suggestions which may or may not be incorporated.

A much more meaningful way of encouraging participation would be to invite comments on potential solutions. For instance, the United Kingdom’s Ministry of Justice usually invites views by circulating questionnaires on potential measures and only makes policy level decisions once they receive responses. This allows key stakeholders to voice their apprehensions and provide viable alternatives to the proposed measures. Another option is to identify all key stakeholders and undertake surveys based on a representative sample size. This is likely to result in richer and a more diverse set of responses, particularly from litigants and court staff who may not otherwise take the initiative to provide comments.

The aforementioned approaches, particularly the latter one, would invariably demand time and resources beyond the capacity of the judiciary. Neither the judges, who are part of the various committees, nor the registry officials, who are unsurprisingly understaffed and overworked, would have the bandwidth to collate and analyse the responses. One possible solution is to build capacity within the judiciary by recruiting qualified staff, preferably part of a separate administrative wing. This, however, may not be a very realistic solution, considering the perennial shortage of court staff due to lack of funding and the well-documented hesitancy to separate judicial and administrative functions. An alternative is to rope in external experts such as researchers, data collectors and data analysts on a project to project basis. These experts could then draft and administer questionnaires, analyse data and share findings with the committees to facilitate their decision making. This approach has proved to be successful in the past when the eCommittee was able to solicit public opinion on Live Streaming rules and Vision Document for Phase III of the eCourts project owing to the increased capacity brought in by external experts.^[1]

Finally, the success of a participatory approach hinges on open communication with key stakeholders. An institutionalised feedback mechanism that allows frontline workers and primary users to share inputs and insights is non-negotiable. This has, in fact, been the primary driver of success behind the Kerala High Court’s digital court endeavour. The court created a Whatsapp group that permitted the advocates to voice their issues with the eFiling system directly with members of the IT directorate. This not only helped the court streamline the eFiling process but also instilled a sense of trust within the advocates for the court administration.

Participatory approach may not be a panacea, but it has the potential to alleviate many of the issues that ail the judiciary. As discussed, a top-down approach to judicial reforms often results in half-baked and short-lived solutions due to the absence of key stakeholders. In accordance with the principle of organisational democracy, excluding stakeholders from participating in the formation of the policies that directly impact them can be seen as undemocratic. It is also highly inefficient, as such policies often end up complicating the life of the end-users and fizzle out due to resistance from them. To navigate this, the judiciary must take a leaf out of the legislature’s books and adopt a consultative, participatory approach to policy-making. As witnessed at the Kerala High Court, meaningful stakeholder involvement in judicial reforms will ensure both the efficacy and longevity of reforms. As the third pillar of democracy, it is high time that the courts uphold the ethos of democracy not only in their judgements but also in their administrative practices.

^[1] Vidhi Centre for Legal Policy was one of the organisations that helped the eCommittee in drafting questionnaires and analysing and incorporating feedback.

*Deepika Kinhal leads the JALDI (Justice, Access & Lowering Delays in India) mission at Vidhi. She has authored multiple research and data-driven reports studying various systemic issues that plague India’s justice delivery systems. She has been a part of expert committees constituted by the Supreme Court, High Courts and NITI Aayog to suggest improvements to case and court management systems especially through the integration of technology. Her interest primarily lies in exploring interdisciplinary solutions to the perennial issues that affect judiciary’s ability to deliver effective justice and in that, she is currently managing multiple projects at the intersection of law with technology, design and management.

**Jyotika Randhawa is a Research Fellow with the Justice, Access, and Lowering Delays (JALDI) team at Vidhi. She completed her B.A.LLB. from ILS Law College and went on to pursue her Master’s from the Tata Institute of Social Sciences. She has worked extensively within the Juvenile Justice System as part of her fieldwork at TISS. At Vidhi, she has authored independent reports on topics of case management and judicial process re-engineering. Her interests lie at the intersection of law, research, and advocacy and include Criminal law, Criminology, and Animal Rights’ Law.