Reimagining India’s judicial system

In the opening scene of the Godfather , law-abiding businessman Amerigo Bonasera, believing in America and the rule of law, goes to the police when his daughter is raped. When the system fails to deliver justice, he appeals to Don Corleone, who asks: “Why did you go to the police? Why didn’t you come to me first?”

This unfortunately is the dystopian reality of India where people cannot trust the rule of law. How bad is bad? Although it is currently impolitic to be self-critical, we cannot fix something until we acknowledge there is a burning problem. India ranks 62 out of 113 countries in the Rule of Law Index. On specific indicators such as order and security, civil justice and fundamental rights, India ranks 98, 97 and 75, respectively.

With over 56 lakh cases pending for over five years, few citizens rely on the judiciary to resolve their disputes. Forty per cent of the judicial positions in High Courts are vacant . The percentage of undertrials in India is 67, which is double the global average. A recent BCI survey discovered that over 60 per cent of the lawyers practising in India are fake. The cost of judicial access is exorbitant.

A study by Daksh indicates that litigants spend about ₹500/day to attend court and another ₹900/day in lost wages, and more than 53 per cent of cases take over two years to be resolved. A survey by Common Cause of 15,562 citizens showed that only 14 per cent (most of who were from well-to-do or educated backgrounds) had interacted with the police in the last 4-5 years. Qualitative evidence suggests that perception of police venality and brutality affect their trust in the police.

Let’s face it, our judicial system is broken. Most of us go through life hoping to never have an encounter with it; only when it touches us personally do we appreciate how bitter is justice denied.

Lack of faith in a fair and swift judicial system creates a low-trust society. The rule of law and trust are central to enable people in large societies, who do not personally know each other, to live together peacefully and collaborate. Looking at developed countries, social scientist Francis Fukuyama concluded that “one of the most important lessons we can learn from an examination of economic life is that a nation’s well-being and its ability to compete, is conditioned by a single, pervasive cultural characteristic: the level of trust inherent in society.”

‘Distrust trap’

Research from Harvard shows that countries with low levels of trust invariably find themselves in a downward spiral, a ‘distrust trap’ of greater regulation and lower economic growth. Such societies become increasingly feudal or tribal; people try to influence public policy and do business in ways that benefit their own family, social class, tribe or religion. People are more likely to bribe officials and engage in frauds because without an effective judiciary, there is little consequence. They are likely to support policies that redistribute wealth in their favour rather than policies that grow the overall economic pie.

Businesses in such countries are mostly family-controlled and remain small because owners do not trust professionals and centralise all decisions. The governance of public institutions and public sector companies is also based on mistrust which is why they remain weak or uncompetitive.

Trust becomes even more central in the information age. The level of interconnectedness and individual empowerment aided by technological advancement increase the rate of change in society. If rule of law and systems of law and justice cannot evolve and instil trust in such a rapidly changing environment, distrust becomes a barrier to change and will ultimately defeat efforts to create a stable and prosperous society.

Fixing India’s judicial system is a truly ‘wicked problem’. It is deeply systemic, which means there are many factors that have to be fixed simultaneously. It has many stakeholders with divergent interests and, who like the blind-men and the elephant, each see only a part of the problem. The system is also insular and unaccountable by design. In this sense, it may be the mother of all challenges.

The way ahead

So is it hopeless? On the contrary! First and foremost, we need to massively increase the number of leaders and innovators who are addressing issues of law and justice.

This means we have to create more awareness and understanding and also create platforms and spaces that invite and enable changemakers from business, judiciary, government and civil society to come together, dialogue and collaborate to create effective solutions.

Second, we must use technology and new media to create a citizens movement by equipping citizens with the knowledge, resources and tools to put pressure on the system to change. Citizens must and can initiate the change rather than waiting for judges, lawyers, government officials and regulators to wake up.

And third, the rapidly evolving field of “legal tech” enables us to use emerging technologies like digitisation, process automation, data and analytics, artificial intelligence to completely reimagine how a 21st century, citizen-centric legal system should work.

The Agami Summit, a convening of legal experts, technologists, innovators and civil society leaders and funders in Delhi on December 5, 2018, is an important step in this direction.

By identifying and showcasing transformative innovations and by bringing together leaders from different sectors to commit to the broader changes, it is a bold attempt to create a platform for change in the field. Many promising new ideas and organisations will be showcased.

The future of the legal profession and systems of law and justice in India — one which furthers the well-being of all through increased trust, security and cooperation — depends on the growth of more such ideas and pivotally also on our participation, the process of initiating and pushing for change.

The observation of Andrew Jackson, the seventh President of the United States, is worth mentioning here: “All the rights secured to the citizens under the Constitution are worth nothing, and a mere bubble, except guaranteed to them by an independent and virtuous judiciary.”

The writer, a business leader and philanthropist, is also UNICEF’s Special Representative for Young People. The views are personal.

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