Shownotes

The Elephant in the Room is my learning and listening project. Something that started out during a period of deep introspection and despair evolved to also becoming a passion project. But being passionate means always trying to do better and living up to the committed purpose - to shine a light on issues of inclusion & inequity. In this case it is about spotlighting the importance of access to justice for everyone in society. The partnership with the India Justice Report is also about getting ordinary citizens to understand the justice system better - so that they are better able to exercise their rights. 

My guests on this episode are Maja Daruwala, Chief Editor of the India Justice Report, and a barrister from Lincolns Inn and Valay Singh, Project Lead of the India Justice Report. We spoke about the purpose behind India's first ever ranking of states on their capacity to deliver justice. The report measures the structural capacity of state based instrumentalities of the justice system against their own declared mandates. 

We also spoke about 👇🏾👇🏾👇🏾

👉🏾 The reality that not everyone has the same experience of the justice system. For the most marginalised and vulnerable in any society, access to justice is often beyond their reach and always too costly  

👉🏾 What really matters to citizens? Access to justice, speed of justice, the improvement of ground level infrastructure, locaslisation etc....

👉🏾 Why women that are recruited into the justice system inevitably find themselves confined to the lowest rungs of the justice system

👉🏾 Lack of representation in the justice system and the importance of reflecting the population for the justice system itself must be just. The inability to change being indicative of prevalent bias in the system. 

👉🏾 The fact that most citizens are not aware of their fundamental rights, because of lack of education on the same

👉🏾 COVID 19 and it's impact on the exacerbating inequalities across the justice system

We also spoke about support from stakeholders, trends and what success would look like. 

Like to know more, listen here 👇🏾👇🏾

Common Cause India Commonwealth Human Rights Initiative DAKSH Tata Institute of Social Sciences - Prayas Vidhi Centre for Legal Policy How India Lives. 

 #accesstojustice #sdg16 #benchmarkingforabetterfuture

Memorable passages from the podcast: 

👉🏾 Love to be here. Thank you so much for having us.

👉🏾 The India Justice Report is the first of its kind, quantitative assessment of the capacity of the four pillars of the justice system. What does it do? It takes data from only government sources, it divides it into these four pillars: police, prisons, judiciary and legal aid. It then further divides into six themes of: infrastructure, workload, human resources and diversity, trends. And then for each theme it has a bunch of metrics or indicators, these would be, you know, the share of women in say police, it would be the judge to population ratio, it would be the case load. Let's go to legal aid it would be the coverage of legal aid in a particular state.

👉🏾 So it brings all these siloed data sets about the different pillars of the justice system in one place and it ranks 25 states divided into two clusters, one cluster being the 18 large and mid-sized states and then seven small states. So for the very first time, we have a resource where you can see how the capacity of a justice system in a particular state is either as whole or for one of the pillars or two of the pillars. This is what India Justice Report does, this is what it has added to the discourse around justice in India. 

👉🏾 Yes, there isn't anything of this kind at the moment and also it doesn't have any subjective assessment. What do I mean by that? We would like to, but we haven't gone and surveyed the public, we haven't gone surveyed say select sample size of lawyers or applicants or policemen. What we have done is, we have looked at what are the benchmarks our state has for itself; so what is the percentage of women it has decided for itself? And we see has the state met its quota for women? Has the state fulfilled its quota SC or SC/OBCs? Has the state fulfilled its own sanctioned capacity of police officers? That's what we do. We do not provide our own judgments, which we of course have, but we have not done that in this report. Therefore, it is a sort of as pure reflection as possible of the prevailing capacity of justice system in India. 

👉🏾 Well as the subtitle says, the India Justice Report is an assessment of the capacity to deliver justice. We often talk about, in fact the whole conversation is about the lack of access to justice, the slowness, the bias, some of the difficulties within the police, the status of prisons, the conditions in prisons and so on. And there is a kind of hand-wringing about it. But then we wanted to look at solutions, but solutions have already been suggested many times.

👉🏾 One of the things that people don't look at, are the nitty-gritty of capacity. How many people are in this work? How much money do they get? What is the workload that they have to cope with? What is the infrastructure that they work within? So we wanted to put that out, in a simple way where people could understand it and then looking at it holistically, looking at all of the pillars holistically, through not opinion, but through facts, through statistics that the government itself publishes.

👉🏾 Look at police, prisons, legal aid and judiciary to begin with. And then every year build on it, make comparisons and see what has improved and what is deteriorating. To basically give a tool to people to look at: policy makers, media people, influencers. So that when we talk, we argue and we discuss on the basis of facts, rather than any kind of perception. 

👉🏾 Actually, the benchmarks are there already. If I can give you an example, for instance, reservations of schedule caste, schedule tribes, that's already there in government policy. How many women should you have in the police? That's already there benchmark is there of 30%/33%. There are general policies also, there are model builds, there are model proposals that are put forward, the centre gives the state guidelines. So there are many benchmarks that are already set. 

👉🏾 As far as third-party audit is concerned, I wouldn't put it that way, it was never intended as an audit. An audit seems to suggest a kind of judgment. But here the facts are put in front of you as given in official data. But from that, then there is an easy pathway to analysing. Especially where there are comparisons; why is one state doing so much better than another? Why is year on year, things not changing? What is the intention of the state? If five years ago or 10 years ago, you had 7% women in police and now after so many years you still only have 10% in the police and they are clustered right at the bottom, then it throws up a conversation. 

👉🏾 It throws up questions about what is the recruitment practices? What are the practical difficulties of bringing women into the police? Are the excuses that are made are the reasons that are given enough? Are they logical or could be changing mindset? I can give you a good illustration, one of the reasons for not bringing in more women into the police, apart from the usual thing about the police being dangerous and macho and so on and so forth, is there is not enough facilities for women. Not enough toilets; where can women go?  Now this is interesting, it's very practical, it sounds very logical. But my question then would be, how long would it take you to build toilets? And if there are toilets already, why are they exclusive to men? Why are they not given to women? If your intention really is to bring about gender parity?

👉🏾 We were not working alone, you very kindly said that it was the India justice team. But the team is actually comprised of six or seven NGOs who are specialists in this: Common Cause, Centre for Social Justice, DAKSH, CHRI, Vidhi Centre for Legal Policy, Tata Institute of Social Sciences and Prayas. And we had a data partner in 'How India Lives'. So we had a lot of thought people who had been working for a long time. And it was they and the Tata Trusts who this report was nested at that time who sat around and conceptualised, what are the things that we would like to look at that are really vital to providing justice. You have to have human resources; you have to have budgets; proper budgets; you have to assess the workload. Is the infrastructure, the human resources; the budgets sufficient; is the workload too heavy and how do we assess trends? How do we assess whether things are going to improve? What is the intention of the state? Because over 10 years you get elections, you get bureaucracies changing by attrition, you get governments changing by election.

👉🏾 So is there a proper policy; is our policies being followed; are manifestos being followed and who is oversighting these things. We would have liked to have done much more, but I should say this is a baby report, this is a nascent report. We've only had two iterations, two editions, and the third one will come out in 2023. So it was to make a beginning that was rational and reasonable on which we could build. Some of it was of course dictated by the availability of data. But as we have gone along and become more and more educated, we are able to correlate across other reports as well. Like crime in India and researchers, et cetera, are going to use this and take it much further. It's going to be a building block and each year we hope to add a little bit more. 

👉🏾 Last year we added a bit on training; on technology. One of the things that we really realised was how little money there is spent on training. Across the board, it's usually around between 1 to 3%, if it goes up to 3%. And yet when you think about it, training creates the fundamental mindset, culture for the police, for the prisons, for the judiciary. And you look at the policy for instance. 

👉🏾 I give you an example the policy change across the years in prisons is to look at rehabilitation and the integration of people into society who come into the prison system rather than revenge and retribution. This is the world over but the question to be asked is how much of the training actually takes you there. And if your training facilities are understaffed, under-resourced, haven't changed their curriculums for years. The promise of using human rights as the baseline and a organising principle for your training has actually not been realised. Then you recognise why the culture in prisons is such or the culture in policing is such. And this is what the report actually takes you to.

👉🏾 I think ranking, I was very nervous about it frankly, because it creates the kind of controversy that you don't want, and it then goes into party politics and so on, so forth. But I think the ranking has been very, very useful. People should be ranked government should be ranked, for the performance that they provide to the people. And we mustn't be mealy-mouthed about. And this ranking is not a ranking that is based on my opinion or yours. It is a ranking that they themselves have given us the statistics for. Our government has given us the statistics. We have no cause not to believe the statistics, and therefore you live and die on the sword of statistics     

👉🏾 And I think that one of the things that the ranking must be seen as is not merely a competitiveness within each other. Like Maharashtra arguing with Tamil Nadu with Telangana. But rather it should be seen as a benchmark that you're making the effort to improve your state itself. You want to be first and you want to be first next year as well and the year after that as well. The other thing that I would like to point out very much is that these rankings, because they are made up of pinpoints of information, by changing two or three things, you can actually improve the entire rank of the state.

👉🏾 So some states for instance Bihar, the first report it had a poor showing on women and then suddenly due to increases of women in the police, they improved it quite dramatically and their ranking went right up. Now like all statistics, statistics only tell half a story, we have to also accept that. So each time we make the report, we try to nuance the report so that it is more and more accurate in terms of the reality that is on the ground. But low hanging fruit; reducing the number of undertrials, reducing the congestion in prisons, improving the amount of money that is spent on legal aid or your contribution to that, the state's contribution to the central budget can change your entire ranking. The changing of the entire ranking is, I would say, as a citizen are incidental. What really matters is the value you give to your citizen. The speed of justice, the access to justice, the improvement in ground levels infrastructure, localisation.

👉🏾 Actually it depends on how you measure feedback. If it is a question of getting noticed, we have been noticed, we presented to the NITI Aayog, which is the highest policy-making body in the country. We have presented to state governments, bureaucrats have been interested in understanding what's happening.

👉🏾 Everybody has welcomed this notion of having this holistic report to look at. It will definitely act as a reference point. There's no doubt about that. The media has been extremely kind, if you like, there's lots and lots of mentions of ourselves in the media. Where I see an outcome is I see that some reporting or much reporting is now quoting much opinion reporting, is quoting the India Justice Report as a validifying factor. So you're getting this mix of opinion and statistics and a reaffirmation of an argument because the India Justice Report shows it. So from that point of view, also there is a good outcome. I cannot say to you, because I wrote this or because we showed this, suddenly there was a huge change.

👉🏾 But undoubtedly bureaucrats, legislators, et cetera, are feeling that okay, if we are to be better, and people do want to be better, then we must improve X or Y. Whereas in Orissa, there has been a public interest litigation on decongestion of prisons. The Chief Justice has taken on board a lot of the stuff that we have said so that he has the statistical arguments to point out to the people that he is giving direction to. And it becomes a monitoring tool also. 

👉🏾 In terms of the judiciary, for instance, I think the statistics that are showing up, 40 million cases, a shortage of judges, a tremendous shortage of judges, a tremendous shortage of infrastructure. Budgets that are stagnating or going up very, very little. And I haven't calculated in real terms how much they are going up. We are seeing that in the high courts, the cases have gone up by 10% and in the subordinate courts by 5% and there is long pendency, and this is going to have a huge knock-on effect.

👉🏾 Now it's not only the India Justice Report that points it out. But as we go year on year, we can now project what's going to happen in the next few years. And it is frightening and people will start paying attention. This hiatus that we have had to go through during the COVID time, nearly 24 months of it. When the courts have not been able to function, simply because of the physical constraints or sickness, courts closing down, et cetera; presents a moment in which to think radically and change things radically because going on as usual is going to only drop us in the mire in a terrible way. And in the absence of this fundamental organising principle of 'Rule of Law' in a society, the breakdown of society is almost prophesied. And I think that this kind of dead serious stuff can be bolstered by something like the IJR but it is plea to change things, because this is never going to be business as usual. Business as usual is going to lead to bankruptcy.

👉🏾 As I said, I don't think it is at all feasible to continue in the same vein as before. You're going to have to take radical steps. A great deal of these steps lie in the bailiwick or the mandate, or the state government. How prisons are functioning, how justice is dispensed. You're going to have to create imaginative solutions, and they are there, they are there in those musty reports that have been lying there for years and years and years. But at the moment there is perhaps not sufficient incentive or push from the public, as well as there is a great constraint of finances. And that makes the struggle, to increase human resources, to increase infrastructure. But again, I think it's a false economy to say we don't have enough money to hire judges and we don't have enough money to improve training.

👉🏾 There are two ways, there are many ways, but two of the ones that I can easily talk about is just to increase human...