In Erewhon’s Court: Vacations for judges

Can limiting the time of judges at work can make the judicial system more efficient?

This case does involve an amount of self-interest, in that I am asked to adjudicate on how much vacation time my colleagues, and I, should get. Perhaps one should decline to try one’s own cause, but the sobering thought is that if I do not, Parliament may feel tempted, and we all know how that would turn out.

At the outset I allow an application filed by several associations representing schoolchildren who want to be heard in the matter. They contend that it does not bode well for society if judges have more holidays than them. At current estimates, they are running neck and neck.

The arguments are well-worn. Petitioners contend that many other sections of society are as hard working as judges claim to be, and therefore on the application of Article 14, judges should not get better breaks. Further, that justice is denied when courts close (this, of course, supposes that it is given when courts work.)

On the side of the respondent judges and lawyers it is pointed out that they engage in virtually all-round activity, including Sundays and holidays, and therefore they need a few days of rest from labour. They also point out that the system works well only if all work at the same time, meaning that if adjournments are sought on the ground of individual vacation time, it would take another 600 years to be free of our backlog (the current estimate being 300).

I must say that both sets of arguments are equally attractive. Indeed this case is of the kind Justice Holmes must have had in mind when he said that it is when principles match in strength and precedents are either absent or equally divided, that the serious work of the judge begins. I have therefore taken a small vacation before starting to write this judgment.

On considerable reflection I have come to the view that the petitioners fail, but however they fail not for the reasons put forth by the respondent. On the principles and ratio that I apply, I hold that it is for the good of the legal system that judges work less, much lesser than what they do now. I will proceed to explain this conclusion, which may at first blush and several more blushes appear startling.

Peter’s Principle

We are all aware of Peter’s Principle which expounds that work expands to suit the time allotted. Give a man, or woman, more time and they will stretch the work to suit the time. Compress the time and they will find ways to do it faster. The application of this principle may indeed result in a faster and more efficient justice delivery system.

One axiom, which is perhaps the most forgotten and neglected axiom in governance, is that justice is a service which the state renders to its citizens, and that the state and its judges are accountable for rendering it efficiently and effectively. It is not a god-sanctioned mercy for which we should be grateful, savouring the driblets that come our way. If one indeed tests the Indian judiciary as a service delivery system, I am afraid that it will end up as the last item of the list of performers. That is indeed sad, considering that justice is perhaps the most precious commodity to mankind.

To return to the point. How does limiting the time of judges at work make the judicial system more efficient?

One, they will have to look for systemic reforms and methods obviating or lessening the need for application of mind in each individual case. A few crucial examples will illustrate this.

Cases of cheque-bouncing clog the courts, especially the criminal courts since it is a criminal offence. Now people dodge payment because delay suits them. Adjudication takes time and finally the court imposes a lower interest rate and penalty. It makes sense to delay. The remedy is not to have more judges but to make it painful to be a dodgy debtor. Once convicted, they should pay with interest significantly higher than the commercial rate of 18 per cent, say 21 or 24 per cent. Just do this and the case numbers will fall, with only genuine cases remaining.

Take another block of cases: landlord-tenant disputes. The latter love the courts, because a case means indefinite extension of occupation time. Reverse this love with fear by stipulating that when a tenant ultimately loses the case he never really had, he will have to fork out rent at one-third higher than the market rate from the time the litigation started. Result: only genuine cases will stay in the system.

Take a third: that of appeals by the government, filed all the time when it loses. It does not have to worry about paying lawyers fees like the common man does. Its officers instead worry about being pulled up for not filing appeals. So it is the largest litigant with almost 50 per cent of cases. Let the courts impose costs against the government for filing vexatious and unnecessary appeals. Let these costs be stringent and based on realism, basically how much harm and expense and trouble you are causing the other side by continuing needless litigation. Make individual officers liable. Soon enough, the needle will shift, with government itself releasing the pedal and ensuring that only worthwhile appeals are filed.

Three methods

Three, and just three methods, will hack away at a major portion of arrears and court burdens. Based on a principle as important as Peter’s—using incentives, and more importantly, disincentives, to guide human conduct. Judges should not be staying up at night hacking away at mountainous case bundles. Instead, we should be spending some productive time during the day to figure out how to lessen the heap in bulk.

Our judiciary would profit with some interaction with management experts who would study flow, retention, and disposal, and come up with remedies. It is indeed a wonder that we have never approached them for help. Not really much of a wonder because we judges think, and are sure, that we know everything and nobody around can teach us better. Now that flawed approach arises from the elevated seat that we occupy, and the very nature of judging.

Some of that is perhaps necessary, given that we have taken it upon ourselves to decide what is right and wrong between our fellow men. That is really a task for the Almighty, who is infallible. We are his chosen instruments for the task, but alas he will not give us infallibility. For that we are forced to substitute a system of appeals reaching all the way up to the top, where finality is obtained. But as the saying goes, the Supreme Court is not final because it is infallible; it is infallible because it is final. We therefore need to realise that the search for infallibility is pointless, infinity of appeals will not achieve it; all it will achieve is infinite enriching of lawyers’ purses.

Two appeals, rather one appeal and one review, ought to be good enough, provided we have good judges administering our laws. So perhaps we should start by eliminating, not adding. One inept judge is bad, and a corrupt one disastrous. The former is correctible, and perhaps trainable. The latter is incorrigible and infectious. Do we really have a system of detecting and weeding out the undesirables who occupy judicial seats? We do not, and it is time to pay attention to that.

A Judicial Commission whose task it is to maintain integrity in the service is perhaps the answer; it needs to be a full-time one, with perhaps its own investigative wing. What a shiver this will send down the wrong spines, and a cheer up the right ones.

We have a system of law that is based on judging from precedents, previous cases. And so many judgments will contain a mountainous recitation of earlier decisions, with the judge’s own reasoning being the proverbial needle in the haystack. That comes at the end of the case.

Why not have a system where it comes at the beginning? Using precedents and AI (artificial intelligence), with some human interface, evolve a predictive result and give it to the parties. They may be encouraged to settle on those lines. If they do not, then the party which fares worse at trial should bear the entire costs of the litigation, and then some more by way of penalty. This will take another load off our backs. Surely the law courts are not cordoned off from the advances of modern science and technology.

But perhaps they are cordoned off from change and innovation and acknowledgment of limitation and impetus to improve. We are so set in the old ways that change challenges our comfort. Even in something as simple as attire, we resist change and insist on heavy black gowns and neck-choking bands in the midst of the Indian summer. And precedent rules over common sense. The golden triad to guide the judge is equity, justice, and good conscience; but in practice it is only the middle that governs and that too based on earlier cases.

But I am getting beyond this case. To come back, broad reforms to limit case inflow are possible. They will happen if judges feel the pressure. The Constitution saves them from pressure from legislators and Ministers; the Contempt of Courts Act saves them from strong criticism. Perhaps Time, which has bested empires and emperors, can be brought in to help. If we compulsorily limit their time at their desks, will they not be forced to think of ways to limit the work flowing on their desks? It is worth a thought, and worth a try.

Short judgments

Another useful strategy to limit judicial work is to insist that they write short judgments. Nowadays every case of note sees judgments going into hundreds of pages. One section for submissions of lawyers, one section for precedents, and one small portion for the judge’s own reasons. The last is like the needle in the haystack. Who writes these enormous judgments? I wish I could say that cut-and-paste methods and law clerks do not play a role, but I cannot.

Who reads these enormous judgments? Many lawyers do not. Certainly not members of the public. And that is the pity. Should they not be the ones we should be writing for, to educate and inform and improve thought and behaviour? A brief statement of facts, a listing of the previous cases with a summation of the law as gleamed from them, and then should follow the judge’s reasoning in depth and his conclusion. Ah, that would be a joy to read, but it would be hard work to write. But perhaps discretion lies in trundling out a few hundred pages which may not receive scrutiny than to write 20 succinct ones which can be closely read.

One can go on, but one need not. I think the point is sufficiently made that judges must labour less, that we must put less on their plates, and that litigants will benefit from wholesome preventive reforms. And so will judges, many of whom are nearing, or have crossed, the age of 60. At that age your strengths are your learning and experience, and with the opportunity for reflection, the matured outcome is wisdom. But not if you are slaving away at steep stacks of files every day which are an endless factory stream on your table. How can you get the broad picture if you focus on minutiae all the time? Using an analogy, if you keep using thoroughbreds as workhorses, how do they run the Derby?

Erewhon (anagram of Nowhere) is based on the novel Erewhon by Samuel Butler set in a fictional country. It is a satire. The Court, judge and judgment in this piece are fictional. Sriram Panchu is real. He is a Senior Advocate at the Madras High Court.