Tuesday, May 19, 2009

Assessing judicial interventions in public service delivery

One of the strongest justifications for having an active and impartial judiciary in a developing country is the need to protect the poor and under-privileged from the excesses of executive action at all levels. Is the objective being served? Are our courts successful in protecting these categories of citizenry from being harassed by executive fiats and the capriciousness of officials and politicians? Or have the courts, like the other esteemable organs of our Government, lost their way in this quest? In other words, have courts too fallen prey to the same vested interests whose sway over the other organs of governance have strengthened?

Judicial oversight is expected to restrain executive lapses that transgress the legal and natural rights of citizens, and ensure that natural justice is delivered. The presence of judicial check reassures the citizens against exploitation and harassment by the various organs of government with which they have regular interface - town planning, property registration, taxation, electricity, local body certifications, revenue (District Collector), and the police.

Anybody who has worked in local bodies or public utilities or taxation or registration or land administration (revenue) departments, would acknowledge the frustration that comes from administering the large numbers of cases where massive amounts (or lands and buildings) get locked up in court litigation for procedural lapses (by government department, often willful, so as to help the evaders) where the substance of violation is clearly established. Thus buildings without plans continue to exist, wholesalers and businesses evade commercial and income taxes, established government lands remain in private possession, public utilities are restrained from disconnecting the services of defaulting users, and so on.

But such judicial powers are a double edged sword, in so far as the possibility of its misuse is considerable, especially with the existing socio-political and socio-economic power structures. Armed with intelligent and well-connected lawyers (who are naturally more likely to be incentivized by money than any altruism), it becomes possible for those who can afford the price, to help the courts interpret law in their favour, often at the cost of public good.

It is natural to expect them and those with malafide intentions to use every means available to legalize the status quo. It is in the interest of a land grabber or tax evader or violator of building rules to freeze, temporarily atleast, his illegal gratification in the form of say, an interim court direction. The absence of effective sun-set provisions to such directions, and the near impossibility of getting such them vacated, means that these interim directions are more than temporary. And as the famous aphorism goes, "justice delayed is justice denied".

The inherent nature of interpreting principle of natural justice and the negative legacy of government service delivery means that the benefit of doubt gets invariably given to the petitioners. While this is evidently just in the case of those citizens whose rights are transgressed by the executive, it comes as a smokescreen for violators and evaders to push through (or get pushed through) their claims. This also provides a convenient alibi for decision makers to protect the status quo and assist vested interests.

It may be worth the exercise if someone could collect data on government-citizen cases in the High Courts, Supreme Court, and lower courts over the past decade, and analyze it to identify trends and patterns in court decisions. The analysis could look at how and in whose favour these cases are disposed off, comparing the durations of trial in cases where the citizens and government are plaintiffs, the durations of the interim stays given on these cases, comparing the final and the interim orders, the socio-economic profiles of the parties and the nature of decisions in each case etc.

It will also be interesting to have studies which analyze the transaction costs - time, money, difficulty of access etc - faced by litigants in approaching the higher judiciary. One could also analyze the details of cases, in say land title claims by private individuals or tax/property evasion or building violations, where government is the appellant/petitioner and see how many cases have been won by the Government.

At the risk of making a judgment, I am inclined to believe that government agencies contest lower court decisions only if there are substantial grounds supporting their claim. The benefit of doubt is generally given the petitioner and the case closed wherever the lower courts rule in favor of the petitioner. This would only logically increase the probability that the final verdict in such appeals should be in favour of the government. However, an analysis of the final orders in such cases indicates that government generally ends up losing the vast majority of even such cases for a variety of reasons, most often unrelated to the substance of the case (and related to the procedural lapses committed by the government agency).

One suggestion that could go a long way in improving the performance of Indian courts would be the introduction of a sunset clause for all interim directions of the courts.

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