Testing judicial reforms

Experimental research is necessary for the Indian judiciary to deal with issues such as high pendency rate

Updated - December 12, 2019 12:50 am IST

Published - December 12, 2019 12:05 am IST

The media has given extensive coverage to experimental research in social sciences in the recent months following the Nobel Committee’s decision to award the Economics prize to Abhijit Banerjee, Esther Duflo and Michael Kremer. The three economists’ work is premised on evidence from randomised controlled trials (RCTs) designed to isolate the effect of an intervention on an outcome or event by comparing its impact on a ‘treatment group’ that gets the intervention with a ‘control group’ that does not get the intervention. Testing interventions in pilot settings thus prevents the state from pursuing ineffective courses of action.

However, there is a conspicuous lack of experimental work in the field of legal research in India. Rigorous RCTs are indeed difficult to carry out in legal settings, given the complexity of the legal system and the need to ensure that any such studies do not hinder people’s access to justice. But there is a great opportunity to incorporate some of these methods from RCTs into legal policymaking. The Indian judicial system is plagued with problems of delay and backlog. Currently, 3.5 crore cases are pending across the country’s high courts and district courts.

The long-term consequence of such high pendency is an erosion of faith in the institution of the judiciary. Justice delivery is the monopoly of the state but delays and the cost of litigation have led to people approaching non-judicial bodies outside the formal court system such as khap panchayats, religious leaders and politicians for dispute resolution. The problem of judicial delay, however, stubbornly persists.

Increasing the number of judges

The most common solution proposed using a simplistic input-output model is to increase the number of judges. This suggestion conveniently masks the deeper systemic flaws in the judicial system that cause such high pendency. Further, despite the seriousness of the issue, there has been no empirical study on the effect of increasing the number of judges on judicial pendency. Using the experimental method will allow researchers to test a causal relationship between an independent variable (say increasing judge strength) and possibly dependent variables (say judicial pendency). Experiments such as these will give policymakers insights into how certain interventions work at a smaller scale before deciding on large-scale implementation. One of the most famous controlled experiments in the U.S. was the Manhattan Bail Project, where accused persons applying for bail were put into a control group and a treatment group. Researchers assessed if those in the experimental group should be released without a bail bond, using factors like employment history, local family ties, and prior criminal record. Around 60% of the accused in the experimental group were released without bond, out of which only 1.6% failed to show up for subsequent trials for reasons within their control.

In a study published in 2007, researchers David S. Abrams and Albert H. Yoon studied the random assignment of government attorneys to suspects in felony cases in Las Vegas. They found that on average, those represented by Hispanic attorneys received sentences that were 26% shorter than those received by defendants represented by black or white public defenders.

Resistance in the system

Given the importance of judicial independence, members of the judiciary are resistant to outsiders doing experimental work on their functioning. Though there is widespread acknowledgement of the problem of judicial delay, there is only limited effort within the judiciary to understand through research the nuances of the problems and motivations of the various stakeholders. An exception is the ‘Zero Pendency Courts’ project in Delhi. The Delhi High Court carried out a pilot project between 2017 and 2018 with the assistance of DAKSH to assess the impact of ‘no backlog’ on judicial pendency and to devise ideal timelines for different types of cases. Eleven judges with no backlog were compared with 11 judges with the regular backlog. The study found that since pilot courts had fewer cases listed per day, they could spend more time per hearing. On an average, pilot sessions judges dealing with murder cases took approximately 16 hours to dispose sessions cases over 6.5 months, while pilot fast-track judges (dealing with rape cases) took 4.4 hours over three months. Studies such as these provide policymakers with evidence to implement targeted and effective solutions.

Experimental research in the Indian legal system is an idea whose time has come. Judicial reforms are far too important to be implemented without the rigorous backing of such research.

Leah Verghese is with DAKSH, a nonprofit based in Bengaluru working on judicial reforms

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