ShowNotes

The collaboration between The Purpose Room and The India Justice Report came about because we are aligned in our core purpose to contributing our own two cents/rupees to creating a better world. The partnership is about helping raise awareness and understanding of the Indian justice system - so that individual know their rights and familiarise themselves with the workings of the justice system. The aim of course is to discuss how the delivery of quality justice must be seen as a priority and become real in the lives of everyone. 

As Maja Daruwala said, “Citizens deserve to be well-governed, the delivery of justice is one of those factors that go into showing whether you are governing well or not.” 

My guests for the second episode on the India Justice Report are Surya Prakash BS, Fellow and Programme Director at DAKSH a civil society organisation working on judicial reforms and Radhika Jha, a lead researcher for the Status of Policing in India Report series from Common Cause. The conversation focuses on budgeting in the justice system, the availability of funds, underutilisation, prioritisation or lack of it, access to justice, the quality of justice and more….

👉🏾 The link between a strong justice system and overall growth and economic development. Did you know how much litigation takes place in a country is one of the determinants of a country’s development prospects? 

👉🏾 I am sure most Indians who read this post or listen to the podcast don't know that free legal aid is one of the fundamental rights guaranteed to all citizens of the country? That nearly 1 billion Indians are eligible for free legal aid? That the system is overwhelmed is another story. 

👉🏾 Restorative and reformative justice as an approach 

👉🏾 The cost of crime to an economy

And on a wide range of interconnected issues.

Thank you Radhika and Surya for sharing your stories and experiences. This is one step towards enabling a better understanding of the behemoth that is the Indian judiciary. And Thank you Valay for helping to pull it all together. 

And if you would like to know more, listen here. 

Memorable Passages from the podcast

👉🏾 Thank you Sudha for having us. 

👉🏾 Thank you. 

👉🏾 So let me take that Sudha. So the connection between economic development and the justice sector, it seems to have captured the attention only of economists, or such esoteric researchers, but the common experience wears out this connection very well.

👉🏾 If you don't have trust in a person, you will need to take the extra effort of putting down the terms and conditions. And if those terms and conditions you are sure will not be fulfilled, you will take advanced deposit or, you will be having a lot of plan B plan C plan D, and finally you will end up going into court if many of those are not met. That puts a lot of pressure on the citizens to be aware of the laws and to back themselves up with these legal recourses, which is cost, which is time, which is a wastage of resources. These are commercial, but economic development is not only about commercial transactions. It is also about how citizens trust each other outside of economic transactions too; like your neighbours, like somebody who are just passing by on the streets. If the crime rate is high, people will not go out in the streets late at night, that affects economic activity, right? If people don't have trust with each other, then you will see a rise in crime rate, it could be a recursive loop. 

👉🏾 So in India, the focus on justice sector has been on the formal justice system, has been on making sure that the number of judges are increasing. From an access to justice perspective, there has been a lot of talk, there has been a lot of noise about getting people on board. So an analogy that I frequently use is, a lot of the access to justice debate discourse in the country has been like trying to get the people on board a bus, we're all the privileged, the well to do, et cetera, we are on the bus and we're getting the not so well off onto the bus saying, okay, come on to the bus. But you know what? The bus is not going anywhere. It's one thing to get them on board but if the bus is not going anywhere, then all of us need to focus on the engine, on the driver, on the steering, right? And that is where a lot of the next level of discussions in this country need to be focused about.

So when we say it has not been paid attention to, I would nuance it and say these two ways, it needs to be focused more on in the next few years. 

👉🏾 So I completely agree with Surya and also I'd like to add that it's not just that we are not paying attention to the justice system in India, but also the prioritisation of the justice system is actually declining over the years.

👉🏾I mean if we just look at the global standards there is the World Justice Project or Rule of Law Index, which ranked India at 79th position. And it has shown a consistent decline over the last four or five years. When we look at only the criminal justice aspect of the Rule of Law Index, our position slips further to the 86th rank. So this is a clear indication of where we are headed.

👉🏾 And I'm not saying that fiscal priority, is the only method of trying to make an improvement in the system, but it is some way to start with. So just to give you an example if you look at the judiciary, if we actually want to fill up the vacancies of the judges alone, I'm not talking about any of the support staff here, we need 5,000 more judges in the judiciary. And there's a shortage of court halls in the judiciary. So just to be able to accommodate the judges who are currently not part of the judicial system, we need at least 3000 more court halls. 

👉🏾So if you will fit in the salaries of the judges, the infrastructural cost or the cost of renting, et cetera. This would become a significant budgetary allocation, which would be much higher than what we are allocating right now. For the police, we are spending about 0.7% of our GDP, which is much lower than the global standards. Countries mostly spend between 1 to 3% of their GDP on policing. So this is one of the areas where we need to start focusing on

👉🏾 Definitely. Just to build on what Radhika said just now. Only on the courts and tribunals, we are spending 0.1%, including legal service authorities. 0.1% of the GDP is compared to the other countries, 1%, 2%, it's a vast gap that needs to be made good at the earliest. Anybody who's seen the financials of the courts, the law and justice department and the administration of justice side, can see that there is a shortage of funds being allocated to the courts and tribunals, to the legal services authorities, the prisons, the forensic, to the entire justice system. The justice ecosystem needs more financial support.

But there are some finer points that we need to be aware of before we agree to such a blanket statement. And that is what will make this next half an hour interesting. Yes. More funds are needed, but for what? 

👉🏾 A lot of the public sector problems seem to be supply oriented problems. There aren't enough roads or there aren't enough schools or there aren't enough teachers. So justice system in that sense is not different from other public delivery systems, in saying we need more supply-side solutions. So it is, to that extent, very similar. Where, we do depart from other sectors is, how can you say that they are not good? You can say this road is not good, so we need a bigger road or a wider road or a better quality. But how do you say that for courts? We're not talking here only about the buildings, right? We are talking about people, we're talking about the experience and the quality of justice, you know that nebulous thing.

👉🏾 So when we say that there is a bad financial planning, the beast around which we are trying to get our arms, is also very difficult to grasp. So there is poor financial planning, there are reports that bear this out, how there is allocation and the classic example is the 13th finance commission report, which was running from the period 2010 to 2015.

👉🏾 And that allocated 5,000 crores I think Dr. Vijay Kelkar Made that award as head of the finance commission. And out of that, only 1000 crores was spent, 4,000 crores were allocated by the finance commission, but not spent. So there is this question of ability to absorb financial support, but also question of whatever you're getting, are you able to spend it wisely? Are you prioritising, right? So there is definitely a lack of capacity in the justice system to both utilise the funds and utilise it well. And in that sense, maybe it's poorer than other systems, other ecosystems like education, roads or health, because of the kind of people who are in that sector. And I'll pause here and we can build upon this as we go along. 

👉🏾 So I think a bunch of issues come into play. There is the resource crunch and the fact that even the resources that are available are not being utilised properly and optimally. But there's also the problem of lack of clarity and direction of the nature of certain projects and the functions that are covered under the project, which are funded by the states or the centre

👉🏾 So I can give you an example of the Nirbhaya Fund, and this is one of the major funding projects But ultimately, we find the funds are being under utilised severely across the states. And we also see that the states very often don't know what to do with these funds, so they end up allocating them to things like CCTVs in railway stations. Nirbhaya Fund for some reason was being used only for, primarily if not only, for the installation or CCTVs in cities and now it's being used for the same thing in railway stations. Which is not exactly a gender safety component.

👉🏾There's also another problem that we see as the underestimating of costs for, areas which are not of high priority. One such area will be the prisoners or the prison inmates, most of whom are under trials, which means that they have not been convicted of their crime. So there is a lot of underestimation in the costs incurred for the welfare and for the basic requirements of these inmates.

👉🏾The mental health of the prisoners, as well as the physical health is severely underreported. Which means that ultimately there are not enough mental health or medical professionals available in the prisons. We found that there's the availability of 1.4 medical staff per prison, and a prison is a large unit. So 1.4 is a very small number to be able to provide facility to the entire unit. Also, there's a factor that we spend a majority of the funds that we get for, let's say policing, on regular expenditures like salaries. So 90% of the policing fund goes towards salaries of the police personnel, in a lot of states, it varies from state to state, but that's the average. So we don't really have any funds left for any kind of new or innovative policing strategies or making the police more people-centric. So these are just some of the issues which play into the bad financial planning of this sector.

👉🏾 So Dhaksh did a survey called the ‘Access to Justice’ survey and followed it up with ‘An Approach to Justice’ survey, this was 2016 and 2017. One of our researchers when he went to a district just outside Calcutta, I think Hooghly it was, and he was asking questions in the court complex and then the judge was kind enough to engage with this researcher and he said this court closes at five. And he said. Why, I mean the court hall is supposed to stay on for at least six o'clock or so, right? The court staff will be there, litigants lawyers. No, I mean, after five the landlord will object.

👉🏾 This is a court and the court is thinking a landlord will object. So what is the problem with the landlord? He said, this is a rented property, actually this property is under dispute in the same court. So the court was running in a building that was under dispute. And then another court hall close by during the court hearings, all of them were squatting not squatting really the cross legged, the Indian cross leg on the chairs. The lawyers were arguing and the judge is sitting on this one. This is highly unusual, what is happening? And then he said, no there are a lot of, these big mice that roam around the courthouse and we were all scared of it. So we're sitting with.......... this is real-life stories of the state of infrastructure in court halls. No doubt at all it needs to be upgraded. No doubt at all it needs to be made world-class; disabled, gender-friendly; washrooms, notice boards. Absolutely no doubt about it. 

👉🏾Another example, and I'll stop here. A judge in a district court, there was some discussion we said, this has been addressed in this decision recently or supreme court decision. He said "Sir, hame nahi pata", I don't know how to access the latest judgments to the Supreme court. Supreme court of the country has given a judgment and he does not have access to it, because there is no awareness on how to access it, and then even if there are, the judgments that he can cite, are only in certain databases which need to be paid for officially, otherwise, he'll have to pay it out of his own pocket. So see the ends, the physical side and the knowledge side. We have a lot to do, absolutely no doubt about it.

👉🏾 The controller and auditor general of India, the CAG, from time to time, they do auditing of the performance of police or prison in various states. So they found very interesting findings about how certain funds are being diverted in almost illegal ways.

👉🏾 In 2020, the CAG found that the funds were being diverted towards, villas and luxury cars for the chief of police of the Kerala police. This is a condition we found in one of our surveys, it's called the Status of Policing in India survey, conducted by Common Cause and Centre for the Study of Developing Societies. We found in the survey that almost half of the police personnel face situations where they don't have vehicles to go to the crime scene. They have faced situations where they don't have vehicles for carrying out their basic and most essential duties, despite this, the funds are being diverted towards luxury cars for chief ministers and police chiefs.

👉🏾 So there is always the issue of corruption and diversion of funds which is a major roadblock, but also there's the simple sheer under-utilisation of funds. Very often, not just the police, but the entire justice system, as well as other system that the government, they are not able to spend the entire fund that they've received. Let me just take the example of the modernisation of police force project, which I was talking about earlier, this is one of the funds which has share of both the union as well as the states, to basically build the capacity of the police. The centre provides 75% of the MPF fund and the states have to provide 25%. The provision of the funds by the centre is dependent on whether or not the states have provided their share of the funds. So a lot of states are unable to get any funds at all because they don't allocate their share of the fund to the MPF scheme. And even amongst the states that do, it is consistently almost, or across all the states and over the years, it is under utilised. 

👉🏾And also from my interaction with the police officers, it's not always the case that the people, the officials in power are just simply sitting on the funds and not making use of it. It's also problem of the flow of the funds and the transfers and the time that it takes, for the fund to actually reach the implementing agency. There's a study by the NITI Ayog of 2019, which found that in, Bihar and Jharkhand it takes about 190 days to transfer funds from the state treasuries to the implementing agency. So this basically means that half a year goes by, in just the simple procedure of transferring funds. This example is from the health index, but I suspect it's very much valid for the justice sectors as well. I've heard of examples where departments get funds for various schemes in the last month of the financial year, and then they are not able to show the expenditure and ultimately the fund becomes under utilised.

👉🏾This is also often used as a strategy for basically depriving and for the government to say that, see, they don't spend the money, so we will not be giving them more money from next year. So if you transfer the funds very late and the department is unable to utilise the funds properly, then the, budget for the next year, goes down. It then becomes a political tool to systematically deprive certain sectors.

👉🏾 So sanction strength versus current working strength is one delta that needs to be focused on. Now we have done some research which shows that, for example just assume that one court complex had 10 judges and two more additional posts were created, right? They were supposed to have 10, they had 10, then it got expanded to 12. The caseload is the same because it's in that same jurisdiction, that did not decrease the lifecycle of cases, very significantly. However, there is another research report that Manaswini Rao an economist from Berkeley university has done. So she has shown if you're supposed to have 10, but you have less than 10, that does play a role. So when you say more judges, there is a need to differentiate between going up to sanction strength or going beyond sanction strength. We still don't know how sanction strength is arrived at, there is still no scientific basis that we have been able to extract from any conversations we have had on how sanction strength is arrived at. But we can take it to be a rule of thumb and therefore work towards making sure, at least those number of people are there.

👉🏾 For me, it's actually not a question of either-or. So on the one hand, we know that the sector is majorly understaffed. We did a survey with police personnel in 2019, under the Status of Policing in India Report project, and we found that the average Indian police person works for about eight hours a day. And half of the police personnel don't even get a weekly off. So the police are overworked, the judges are overworked, there is no doubt about it. And this can only be resolved through filling up the vacancies at the very least. How essential the police or the sector is, became...