Shireen Vakil: 'The justice system isn't working.'

Civil Society News, New Delhi

For repairs to begin, however, credible baseline information is needed. Putting it together is a complex task. It has to be sourced from government and also placed in context. Academic rigour and evangelical zeal are both needed.

The India Justice Report 2019 produced by the Tata Trusts recently is a significant step in this direction. It is the first comprehensive and bottom-up report on the working of India’s justice system across 29 states.

What emerges is a disturbing picture. The best performers among the states are nowhere near their own declared goals let alone international standards. Infrastructure and human resources are much below required levels.

The report has been put together over 20 months of persistent work. Some information has been in the public domain. But a lot needed to be ferreted out. Innumerable right to information (RTI) applications were filed.    

Several voluntary organisations have been working on different aspects of the justice system. The Tata Trusts has brought them together for this report, making it a rare and valuable collaborative effort.

On a polluted and depressing November morning in Delhi, Civil Society spoke to Shireen Vakil and Valay Singh at the sedate offices of the Tata Trusts at the R.K. Khanna Stadium.

 

How did you manage to put together all this information?

Shireen Vakil: The Tata Trusts have supported pieces of research over the years. We have had long-term partners who knew about each other but were in their own zones. Those who knew about prisons didn’t necessarily know about the judiciary. What we have done is to bring it all together.

 

So it was a learning experience for them?

SV: I hope so. We weren’t experts. All the others had been working on it for decades. They know their areas, but we were deciding everything together and I constantly had to push them to look at other areas. Valay played a big part in managing this.

 

There is a lot of rigour in this report. It must have taken you a long time?

SV: It took us about 20 months.

Valay Singh: The rigour was the main thing because we didn’t want to do anything without academic rigour. We didn’t want to produce a report for the sake of producing one.

SV: We had to make sure that the data was absolutely thorough. That was checked, double checked and triple checked.

VS: The process was like this — we had a series of meetings where we formed sub-groups, then thematic sub-groups. We used to sit as a committee which used to vet the findings of the sub-groups. So we first came up with pillar-wise indicators, then we made them uniform by dividing them into six themes of workload, budget, diversity, infrastructure and so on. These emerged from the discussions we had in the committee. Once that was decided, we got a data agency on board because we realised it is a humongous task and we can’t do it in-house. We got How India Lives on board and they went through all the government sources, trawled the data. We used that data set which was then cleaned up and put into a statistical model with our coordination and guidance.

SV: We had the inputs from experts who have been working in this field. We had four or five organisations which had expertise and had already brought out reports. Maja Daruwalla, who was the chief editor of the report, was also the director of the Commonwealth Human Rights Initiative. For the methodology we had several professors like Amitabh Kundu come in. Then there was Yamini Iyer of the Centre for the Study of Developing Societies (CSDS).

There was a lot of deliberation to make sure that we were doing it as well as we could. For instance, should we give more weightage to one indicator over the other? Those sorts of discussions were important. We also tried to translate the information in a way that wasn’t too academic. We wanted the information to be accessible to ordinary people.

Our perspective was to bring this discussion to civil society, to politicians and the citizen because justice affects all of us.

The fact that 68 percent of people in prisons are undertrials means that most people should not be there. Obviously that means that there is overcrowding. Someone picked up from the corner of the street or in a village is just taken in. They have no idea what their rights are. They are terrified and more often than not they are from Adivasi, Dalit or even Muslim communities.

 

As information goes, how much was this easily forthcoming?

VS: I would say that a lot of this information is available online. But it is not evenly available, it is not updated and there are holes and inconsistencies in data that we have to live with. We could not assess some of the things we would have liked to assess because that information was not available. For example, it was difficult to truly assess across the justice system what is the share of women, or what is the share of SC/ST people or what is the share of religious groups.

It’s difficult because?

It’s difficult because the data is not there. Therefore we would file an RTI. But I would say, our report has about 40 to 60 percent of publicly available data.

 

It’s not that this data is blocked or shrouded in secrecy?

SV: It is not timely and it is not put together. Information is not available on religious lines or for Scheduled Castes and Scheduled Tribes (SC/ST). It was available pre-2015 and then they stopped publishing it.

 

You chose certain indicators like infrastructure, human resources, budget, workload, diversity while you were doing this. Where did you have the biggest problem?

SV: I think it is pretty equal. One of the things is vacancies in human resources. We saw over an average of 20 percent vacancies across the four pillars of judiciary, police, legal aid and prison staff. Prisons have a very large number of vacancies. Within human resources, diversity is an issue. The fact that on average only seven percent of the police officers are women and just two states, Tamil Nadu and Maharashtra, make it to double digits — 12 or 13 percent.

 

There might be many policewomen, but they aren’t officers, they are constables.

SV: Yes, exactly. Similarly, you’ll have many women in lower courts but not very many in higher courts.

 

So this is a problem across the board?

SV: Exactly. It is the vacancies plus the diversity. The vacancies are for the sanctioned posts. But you may need even more. You may say you are sanctioning 100 policemen per station but actually you need 200. So human resource is a big issue and the second is the infrastructure. It is very poor. I mean, even in courts problems range from leaky roofs to tiny or no toilets. In fact, 100 out of 600 courts do not have a women’s toilet. Not for the petitioners, not for the lawyers or the judges.

Budgets are also a big issue. There are no budgets. During our panel discussions there was a huge conversation about budgets and how sometimes they are underspent. You have to plan properly and the spending will follow.

 

You have pointed out in your report that the judiciary gets the least amount of money and it also doesn’t spend that much money. It doesn’t know how to budget its funding.

SV: Yes. The judiciary, which was present at our launch, said that they just put in a 10 percent increase every year. They are not sitting and making a proper plan and a budget. That’s the case for several sectors. They don’t have the training and they don’t have the capacity to plan properly.

 

There is also a skilling crisis. You have pointed out that just six to seven percent of the police force is actually trained.

SV: What we were looking at was the capacity of the system to deliver. We found that no state meets even 60 percent of its own targets. Forget being world class or anything. These are the states’ own benchmarks. For example, the Bihar government says they are going to give 38 percent quota to women in the police, but it’s actually at only 13 percent. So, they are not meeting their own targets. Even on their own indicators, the best they are doing is 5.9 percent. Justice (Madan) Lokur pointed out that though Maharashtra comes first, it doesn’t come first in any of the pillars. So its average is the best.

 

Has there been any attempt in the worst performing states at modernisation?

VS: In the intention to improve rankings, you’ll see that some of the bottom states come in the top 10.

We have looked at five-year data across 23 indicators. It’s not that they are not trying, it’s just that they are not doing enough. West Bengal and UP come on top when it comes to intentions and trying.

 

How did you evaluate the intent to improve?

VS:  There are 23 hard indicators for which we analysed five years of data. So in five years, by how much did states try to reduce lower court vacancies, by how much did they reduce constable vacancies?  It’s hard data.

 

Is there a subtext to the information?

VS: I would say that the subtext is this: All of the system isn’t working. Even the best state is only reaching 60 out of 100. The other thing is that on a general basis southern states are doing better. But these are things that we don’t have concrete scientific evidence to say. It can be gleaned from this report that the states with high socio-economic numbers are the states with better justice indicators — they are also better with ease of business and so on. 

We will have to look more closely, meet more people and deconstruct it at the state level. Right now we just want to place the issue of the capacity of the justice system. Everyone talks about quality of justice. We wanted to locate quality in the quantitative framework.

 

Prisons are a very dark area. Your report points out how a staffing shortage leads to overcrowding. You may have empty jails, but you can’t put people in there because you don’t have the staff to administer them. It’s a clear case of how staff shortages are directly affecting the system.

SV: Absolutely. Vijay Raman from TISS' Prayas who has been working on the prisons project had written an article in the paper about prisons and people’s needs. There are places where prisoners are given the duties of prison staff because there aren’t enough staff. There are cases of undertrials doing their work, which is not good at all.

I remember when the Tata Trusts first began looking at this portfolio it was called criminal justice. I actually changed it to ‘access to justice’. Sixty-eight percent of people under trial might not have even done anything. They are in prison because of the police’s wrong behaviour — not filing FIRs, etc. They also don’t get access to legal representation.

 

Your report shows legal aid is patchy.

SV: Very patchy. There is a lot of waiting in courts. There’s also the fact that sometimes people don’t even show up in court because the police escorts to take them are not there.

 

Among paralegals, there are a lot of women but they are not trained. You have a critical problem  there.

VS: It’s become tokenistic sometimes, the legal aid system. People are enrolled as paralegals but what are they actually doing? There is only one legal aid institution per 1,600 villages in UP whereas government regulation says that there should be a reasonable institution per five or six villages.

 

So you want this data to be accessible to journalists, and people and NGOs as well?

SV: Of course, we hope that it will provide NGOs working in this space a tool for advocacy and for their work and for their sharing. Which is why we’ve kept the data completely open. If they want to look at the data in their states and districts, if they want to present the data, they should be able to use it. It isn’t that the information wasn’t there, but accessing it was a problem.

We had the contacts and the reach. Otherwise, if someone just wants to go and find out, it’s very difficult. We’ve done it for people to use, and hopefully the government as well. If they want to monitor and see how to increase and improve they can use the data we’ve collected.

 

Do you see your role as providing this data and stopping there or do you see your role as getting into advocacy with decision-makers?

SV: Of course. If we weren’t this would have just been a research document. That’s not the idea. Our work actually begins now. This is the important thing, we’ve already had meetings with NITI Aayog. We’ll do it with and through our partners. Someone in Rajasthan was keen. We would facilitate that and have some one-on-one meetings with the respective ministries. The idea is that we will do this periodically. We will update the data every two years and keep that conversation going.

It’s not that we’re going to do the advocacy ourselves necessarily. It is just that this is a tool for advocacy. We’ll do some advocacy ourselves with our partners and some we hope will spin off.

 

Somewhere, we never got the system talking about it. But if this is to work, how do you get the system talking about this? Who in the system can trigger it?

VS: The whole idea is to popularise the entire issue of justice. Just like health, education, sanitation and the hand washing campaign. We’re trying to create a public demand for a better justice system through a ranking index.

SV: Also, the thing is, in the next six months we will be doing advocacy at the national and at the state level. We will prioritise certain states. In the next three to four months, we’ll have state-level conversations with the system.

We’ll be reaching out to the chief secretaries, the chief ministers, the secretaries in each of these ministries, at the state and central levels. We have a series of things planned in the next six months.