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Ep 62: Judicial Reforms | The Seen and the Unseen


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I had a strange dream the other day.
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I dreamed that I was 700 years old.
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I was in a court room fighting a case that had been going on for the last 680 years.
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I begged the judge for a judgment.
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I've been waiting so long, I told him.
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It's been more than 600 years, please put me out of my misery.
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Deliver a judgment.
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The judge looked at me and said,
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Oh, I can deliver a judgment, but then this case will go to appeals.
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And that will take another 700 years.
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What's your lifespan anyway, Mr. Verma?
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How long do you want to live?
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Forever, I said.
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I will wait forever.
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What choice do I have?
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Welcome to The Seen and the Unseen, our weekly podcast on economics, politics and behavioral
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science.
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Please welcome your host, Avid Verma.
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Welcome to The Seen and the Unseen.
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None of us need to be told that our country's judicial system is in a mess.
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Cases drag on for years and decades and I've actually heard of a case which is more than
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a few hundred years old.
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Don't ask me how that happened.
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So the subject for this episode, therefore, is judicial reforms.
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And to help me make sense of all the ways in which our judicial system is messed up
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and all that we can do about it, I have with me as my guest, my friend Alok Prasanna Kumar,
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who is a senior fellow and heads the Bangalore office of the Vidhi Center for Legal Policy.
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We had this conversation a couple of weeks ago in Bangalore.
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Alok, thanks so much for coming on The Seen and the Unseen.
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My pleasure, Amit.
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Alok, all of us know that the judiciary is in need of reform.
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I'm going to come at this episode from a completely layman's point of view.
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What we typically know about the judiciary is, you know, you get those Bollywood dialogues
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of tariq pe tariq, tariq pe tariq, we know it's overburdened, we know that under trials
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stay in prison for decades sometimes, and we know that cases just linger for literally
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hundreds of years.
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I mean, someone was telling me the oldest case is some 700 years old and it's just continuing
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through all these ages.
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What I want you to do today in the course of this conversation is, number one, actually
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define what is the scope of the problem, what caused it, what can we do about it, and how
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hard is it to carry out those reforms?
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Okay, so defining the scope of the problem, when we say the judiciary, there is no one
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wing of the judiciary which is not free of this problem.
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We have the same kinds of problems happening at all levels and it's there are multiple
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problems.
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I think some are problems with the institution itself as it stands.
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We have not really moved away from the 19th century notion of what a judiciary should
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be.
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We have added computers and possibly used nice fonts in our pleadings, but our notion
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of how the judiciary should function still harks back to the 19th century house of lords,
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and the structure of the judiciary follows is almost similar to what the British had
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set up.
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The only difference being that the subordinate judiciary is not under the control of the
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state government.
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So what is that 19th century notion?
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The 19th century notion is that you have people who want to file voluminous pleadings, are
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happy to engage in litigation as long as they want, and the court's job is not to tell them
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to move on quickly, but let parties take their own time and you figure out how to decide
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the cases.
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Judgments are delivered, of course, in accordance with the law, obviously, but not as a means
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of... this is what the institution should work like.
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It still follows the approach that people will decide how they want to litigate a case.
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Our job is only to, as with a baseball umpire, call the pitchers and call the strikers.
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And there is a reason why I'm using baseball, because in baseball, the umpire's role is
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relatively much smaller than the role of an umpire in cricket.
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In cricket, there are subjective calls that the umpire makes.
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Umpire speeds up the game, umpire can say, okay, you're taking too much time, move quickly,
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move quickly, or I'll penalize you in this way.
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So ironically, even though we got cricket from the Brits, we haven't adopted that approach
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in our judiciary at all.
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So we are still content at letting the judge be somebody who says, fine, you want to file
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a more document, take some more time, fine, you want an adjournment, take your time.
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Do this.
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That's the basic level.
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So what do you think the 19th century notion, therefore, is that the judge is only interested
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in the final outcome and doesn't interfere much with the smoothening of the process?
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No, it isn't.
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And the idea is that the process is something which broadly meets the requirements of the
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natural justice, but we have to hold them to the process.
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If somebody needs time to file this document, the other person has to be given time to respond
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to this.
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Then the other person has to be able to allow to do it, do this.
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Our code of civil procedure was drafted in the first decade of the 20th century.
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We have made no major amendments to it.
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The one effort at trying to make an amendment was rolled back almost instantly.
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So we are still stuck with this old notions of how a case should move through the court.
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Whereas the rest of the world has moved on.
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Even Britain has moved on.
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Even they have understood that cases have to follow a certain approach in terms of they
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need to be done by this period of time.
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Right.
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And it's a it's in the hand of the judge to ensure that it's done in this period of
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time.
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The judge is the person now responsible for seeing a case through, not up to the parties.
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So the judge will say, look, I'm giving you this much time.
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You have to do whatever you need to do in this time.
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I'll fix it for arguments.
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And I want you to finish our arguments by this period of time.
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And I'm delivering judgment.
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All these countries have realized that there is a certain point of time where you just
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can't keep adding capacity to the judiciary and hoping that everything will continue as
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normal.
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They've all recognized that it works.
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The judiciary, as understood in the 19th century model, judiciary is extremely inefficient.
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It's extremely inefficient.
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It is not geared towards quick disposal of cases.
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Yes, parties will be convinced of the court's independence.
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But the fact is, there's only certain price that are willing to pay to wait for the judgment
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to come eventually.
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So as an old cliche goes, justice delayed is justice denied and so on.
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So what you'd say is that the 21st century mode of justice pays a lot of importance to
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the process.
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So that justice is not delayed.
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Yes.
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And is this sort of a necessity brought about by the sheer volume of cases and litigants
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that of course happens with the growing population or would you say that it is part of the better
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delivery of justice as well?
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It's also it's a bit of both.
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Now in terms of actual number of cases, India probably doesn't have as many as the U.S.
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Wow.
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I mean, it's hard to compare one to one, but the volume of litigation probably is less
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in India than in the U.S. as well, because the other factor for growth of population
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is economic growth.
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So which means you have more entities.
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You have companies filing trusts, filing societies, filing cases against each other and so on.
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But also the fact that we have not seen the justice delivery as a service, we've just
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seen us as this big institution sitting in the old sandstone that is immovable and whatever.
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And we've never thought of what goes on inside that institution.
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How are cases taken on board, listed, heard, disposed of it, never really thought about
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it seriously.
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And only now that people are saying, oh, hang on, you know, we should start looking into
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the processes of the judiciary and realizing that, oh, there's no way, you know, if this
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was a process in any private company, it would have collapsed in a matter of months because
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nothing happens.
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So which is why I think we have not seen it in those terms.
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And the pretty is this whole argument of first world judiciary and so on and stuff doesn't
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really hold because you have just an excellent model just across the Andaman sea.
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Singapore, for instance, is truly the beneficiary of India's failing judicial system.
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Some of the highest value arbitration, some of the most important commercial cases go
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to Singapore.
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Greatest example, the Ranbaxy.
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Ranbaxy and Daiichi sank your case into Singapore arbitral tribunal.
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Why?
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Because the parties are sure that in Singapore, when you arbitrate a case, it's done within
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a year.
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When you challenge it in court, it's done within a fixed period of time.
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And when you challenge it even further, that also has a fixed period of time.
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So therefore, both parties recognize that closure is important, has value and that delays
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are a negative sum game.
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Both parties hurt.
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So let's just go to Singapore, get us out of it.
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Whoever loses, loses.
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Now, so my question is that this 19th century mode of thinking, as you're saying, is it
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embedded in the laws and the rules for the institution to follow or is it part of convention
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and it's just evolved this way?
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So interestingly, to go back a little bit into history, India got its laws codified
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much before Britain did.
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Even though we were being ruled by the British same people, they figured, no, no, no, these
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people can't be trusted to evolve our conventions or understand our traditions.
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We'll codify everything.
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The problem is that since then we haven't moved on.
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We are still stuck.
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So, and this is something that I'd like to tell everybody and shocks people.
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Our code of criminal procedure provides you better civil rights guarantees and the constitution
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of India.
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If, if, if a judge just followed the code of criminal procedure, right, you would ensure
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that you are heard properly, you would ensure that you are not detained for longer than
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necessary.
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You would ensure that you'd get a lawyer.
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You would have the right to cross exemption.
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All of this is guaranteed in the code of criminal procedure, not our constitution.
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Nobody thought that, guys, this is a, you know, a colonial thing.
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Maybe we need to either a change our code of criminal procedure that keeping all those
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civil rights requirements, but ensuring that a trial happens quickly or, you know, we put
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into the constitution to ensure that everything, other changes can be made more organically
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as things go on.
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So we are now left with a situation where, unfortunately, all state governments seem
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to think that the way to ensure quick justice is to loosen the requirements of the criminal
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justice criminal procedure code, which means you won't get bail.
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You won't be heard.
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Summary trial.
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I mean, all this kind of stuff is a basic violation of civil rights.
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And none of this actually helps in moving a case forward.
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All it does.
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So you will find special courts are failed across the country.
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Why?
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Because they will not give proper hearings.
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They will pass judgements and the moment a judge in an appeals court, they'll say, this
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is rubbish.
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Right?
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How can I, how can you possibly convict on so little evidence?
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Give me a historical sense of this.
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So when you talk about special courts, what are these special courts?
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What were they set up for?
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And so on.
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So initially the idea for special courts comes in the fifties.
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The fact that, you know, you feel like, okay, there's certain, there are certain crimes
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and in the context of partitions, basically, and, you know, communist uprisings and so
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on, you want special court to try certain categories of offenses.
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Now, unfortunately, the Supreme court sort of made a mistake by saying, okay, fine.
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An exceptional situation, but that exception has widened over the years.
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Right?
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And the very fun of the very first cases regarding article 14, the Supreme court said in certain
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exceptional cases, we'll allow the special courts and so on.
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But the nowadays, the special court has lost all the meaning.
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It's your regular court, your regular court that sits and say the city civil does it
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have like speed in the procedures or something that they mess it up, mess around a little
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bit with it.
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So speeding up as much, so much as to say, okay, you lose your right to this, you lose
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your right to cross-examine or you lose your right to apply for bail or you'll have to
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do it in three months and so on, or what they do, which is even worse is to say these categories
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of offenses will go before the special courts that the regular procedure is followed and
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you'll realize it moves quickly.
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But then that means every other category of cases stuck.
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So in that way, what causes the problem is that you're not really resolving the systems
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issues.
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You are addressing one particular part of it, but causing 10 other problems, you know,
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that literally the, you're trying to solve the scene problem and causing 10 other unseen
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problems.
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Unseen problems.
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Yeah.
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Which is a quick question of capacity, but we'll get to that later.
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So would you say that some of the civil rights protections that the criminal code offered,
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which the constitution doesn't, are now slowly being taken away by states and the constitution
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doesn't protect them anyway?
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So here we are in trouble.
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Yes.
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And it's a constitution's job really to have embodied those in the role.
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Yeah, to an extent, yes, because there's a little bit of complacency.
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If you see the constitution, the constituent assembly debates, you know, somebody says,
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you know, you should, you should put the right to cross examine in the constitution itself.
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You should put these three, four other things.
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I'm going to sort of dismiss it saying, no, no, only a very insane state government will
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say we'll take away the right to cross examination, but consider things like the Gundas act, right?
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See what procedures they have.
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There's none.
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There's literally none.
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Explain that to me.
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What is the Gundas act?
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So for instance, the Gundas act is to sort of catch hold of people who are quote unquote
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history.
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She does those who repeat offenses.
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It allows the detention, preventive detention of people.
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And there are very little criminal.
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It's one of those where the focus is on, let's try and get a conviction somehow or the other.
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The other egregious thing is the NDPS act, narcotic drugs and psychotropic substances
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act, which sort of makes it difficult for you to get bail.
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There are a whole range of laws that make it difficult for you to get bail.
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Uttar Pradesh has done away with anticipatory bail, right?
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In terms of the fact that you're making it as hard as possible for somebody to get out
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of jail, you know, even if they have not actually committed the crime or when the Supreme Court
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has repeatedly tried to say that bail should be the rule and jail the exception.
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Now they're trying to change our laws to make it the other way around.
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And you have other egregious laws like, you know, apart from national security, you also
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have the Makoka and the UP other versions of the Makoka press bring up around the country,
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all of which sort of say that confessions obtained by a police officer are admissible
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in court, you know, which is basically like an incentive to torture, saying stuff like,
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you know, even if we loosen the rules of evidence that we don't impose a rigorous standard to
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prove that you actually collected this from this person.
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So there are a whole range of such sort of civil rights weakening happening at the state
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level where they're responding to, oh no, why aren't criminals getting convicted?
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The problem is the procedure, not the institution.
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So therefore the civil rights are being weakened as a result.
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So when, when state governments weaken these civil rights at these various different ways,
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what are the sort of incentives that are playing on them?
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Like for example, do they want cases to get over quickly?
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Do they want to strengthen their own hands so they can do what they want?
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What are the incentives, incentives playing out here?
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Primarily it is to respond to this public outcry.
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Right.
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So for instance, this optics that we are doing something strong arm of the law.
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Yes.
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A is optics.
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We'll introduce the Gundas Act.
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We'll use the NSA.
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We'll use, you know, the amendments, the IPC and whatever.
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That's the optics.
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The second is, so when the clamor dies down, they're still left with the power.
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So they'll use it as they feel see fit.
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So you know, they'll use the NSA to jail Chandrasekhar Ravan in Uttar Pradesh because he is organizing
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Dalits or you'll use sedition against Hardik Patel in Gujarat because you know, he's threatening
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political power.
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So when the optics died on the power is still there.
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So which is why, which is why I think, you know, nobody's going to, people aren't framing
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the problem correctly.
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Nobody's saying, Hey, let's reform the judiciary.
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If you ask me the reason why we have a criminals in politics problem is because the judiciary
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is not able to decide cases quickly enough against them.
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If you ask me why people are so outraged about 498A, it's because we're not actually reforming
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the judiciary so that, you know, obviously malafide cases are brought being dispersed
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that you're not saying why you're arresting this person, right?
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Under the code of criminal procedure, arrest is not something that automatically happens
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just because somebody files an FIR against you.
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You're not enforcing it against them.
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You even 66A for that matter of the information technology act was a case where you did not
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seriously see you're putting this law in the hands of your local constable, right?
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That person is not going to care what, you know, the fine words of this law mean and
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he's not going to pull out a dictionary to see what malicious means or what any of that
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is.
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It's a blunt instrument.
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It's a blunt instrument.
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And even for that blunt instrument, the idea is the court should be able to rectify these
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things, but they're not right.
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You file something, you hope quickly that you'll get a hearing that the prosecutor turns
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up on time and that, you know, they will not try and mess up something else.
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People don't have that faith in the judiciary that if even if we have a law, which is somewhat
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egregious, that there is somebody who can ensure that things are remedied quickly enough.
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So which is where the responses do something about the law itself, right?
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It's completely the wrong response, which causes more issues.
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So let me try and sum up the two broad problems as I see them that you pointed out with the
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judiciary.
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So tell me if I'm articulating this properly and sum it up properly and B, tell me if you
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want to add to it.
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Sure.
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Problem number one is that we have a bloated system which doesn't deliver justice or delays
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it so inordinately that it might as well be called a denial of justice itself.
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And the reason for that is a 19th century mindset, which focuses just on judges giving
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outcome and not the speediness of the process and that needs to change.
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Problem number two is that we have a civil rights issue because certain civil rights
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and certain rights are not protected by the constitution as they should be and therefore
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they are left at the discretion of state governments to tamper with as and when they feel like,
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which they often do for reasons of optics to show that here we are doing something about
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this problem.
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Yeah.
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And sometimes they may not intend that, but mistakes happen because they're not far sighted
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enough.
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Is that a correct submission?
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Yeah, that's, that's, that's the correct thing.
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And one feeds into the other, right?
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One feeds into you see that the fact that our judiciary is so inefficient, is so unable
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to deliver his judgments on time and ensure a trial is completed, a lot of means that
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the thing is, okay, we can only do this, right?
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We can't, we are, we can only change the law.
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And if that means you'll have to give up your civil liberties support.
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That's, that's, that's the unfortunate situation that we're finding ourselves in.
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Right.
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So what are the sort of solutions which are A, typically touted and B, which you feel
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can work?
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So a lot of the times the situation, the solution that is touted is we need more judges.
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That's not true.
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Yes, of course we need a certain minimum level of judges.
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Antarctica and Calcutta high court, for instance, are recently suffering the problem of even
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a minimum number of judges are not being available, uh, just to be able to handle the existing
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case sort of cases.
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But I think the capacity problem in terms of the number of judges is somewhat overstated.
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We don't need that many more.
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Maybe we need about 10 or 15% increase in judges and we'll be fine.
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Which is easily doable.
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Which is easily doable.
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Right.
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But to be fair, I'm going to break that down a little bit because we are doing the research
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on that and I'll share some of our findings with you, which is reasonably easily doable
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uh, so capacity is not so much of an issue.
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Computerization is touted as a big solution to problems, but you're talking about a country
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where not all trial courts have access to electricity.
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So what computerization are talking about?
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So NCAR did this fascinating study on how the e-court system has worked in India.
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They studied about five states, uh, one of the states, so I spoke to the researcher and
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she said in one of the states, uh, they were speaking to litigant and the litigant said,
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madam, if you have to file a case in this place, you have to carry two cans of diesel
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with you.
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She said, what?
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Why?
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Um, so if you go to the filing counter, they'll say power cut ho gaya hai, uh, system ko chala
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na hai, toh generator ke liye diesel toh nahi hai, toh leke aaja ho, doh doh can leke aaja
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ho, start karenge, tera case file ho jayega.
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Wow.
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In the court, in the trial court level, right?
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So what computerization are you going to do when you can't guarantee basic electricity?
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Uh, so that never really happens.
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Uh, a third solution that is touted is tribunals.
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All right, let's take it out of courts and let's appoint in tribunals.
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But tribunals suffer the same problems as courts, 10 X.
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Um, you have a very casual attitude towards hearing cases.
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You have people who are not qualified being appointed to tribunals.
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Uh, you have excessive control of, so you have to, both the problems, you have excessive
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control of who gets to be in the tribunal and also a total laissez faire approach on
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how the tribunal should function from the government.
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It's like the stepchild of the government, right?
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We'll allocate some money to it when we get to it, that kind of an approach.
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These are not solutions, which will work.
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If we have, if we are being honest with ourselves, we'll first take a cold hard look at how our
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legal system is structured, at how we expect that everybody should come to court to resolve
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disputes.
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That's not necessarily true.
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What we are not doing is incentivizing people to approach other fora and under the law,
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I'm not saying please approach a local goon, but it's happening.
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But the idea should be now for instance, if, and this is what other countries have done
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with great success.
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Uh, some, a person who attended a day's hearing in California, uh, state level court saw that
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there were about 70 matters on the list, right?
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Now everybody complains about, Oh my God, there are 70 cases in Indian courts every
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day.
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How can they hear it?
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What happened was very simple.
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Numbers one to 65.
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All that happened was his party here, party here, are you guys ready to mediate, refer
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to mediation, party here, party here, ready to mediate, refer to mediation.
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65 cases done that way remaining five cases we tried mediating, not happening.
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Fine.
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I'll fix dates for trial.
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We start here.
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We end this date.
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We start here.
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We end this day.
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So again, layman's question, what do you mean by mediation?
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What happened?
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So mediation is when you sit down with the mediator person who knows how to bring parties
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to this thing, you arrive at some sort of a consensus that this is how we'll settle
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a dispute and you need a consensus.
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So it's not a judgment.
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It's not a judgment.
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Right.
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And the, and the point is that mediators job is to just help you come to a consensus.
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They will not say you guys should resolve it like this.
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They will not say you guys should do this.
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They'll say, okay, what is the issue?
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Why are you here?
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What do you really want from this case?
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What are you willing to let go?
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All right.
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And they have it with both parties individually sitting with parties.
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It's a, I would say labor intensive process because in court, it's easy to say list after
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four weeks file document, whatever.
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This requires a certain level of empathy, understanding and patience.
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They feel a lot of times it's happened, but a good mediator will be able to ensure that
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parties find the common ground and say, you know what?
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Okay.
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I'm willing to let go of a little bit of this because I'm still getting this or actually
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all I just wanted was this and that person is willing to give you this.
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Is it kind of data about like what percentage of cases go to mediation and what percentage
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succeeds?
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So we tried to do that study.
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We have actually done that study.
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So we were able to get the data only from Delhi, Bangalore and, uh, but we, of course,
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we went very, which is the legal thing.
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So we were commissioned by the department of justice to do the study on mediation that
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report is on our website, the exact figures I don't have instantly, but a success, a significantly
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large number.
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Now it can be improved, right?
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Uh, in the sense that if we had more mediators, if more people are aware and if more trained
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mediators at the moment, mediators are still doing this as their second job, whereas in
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other countries in the world, it's a full fledged profession.
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People usually are some sort of lawyer or some sort of a retired judge.
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They're happy doing the other things and they mediate because they offer their services
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for free for the, there's a Bangalore mediation center.
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There's a mediation center at the Delhi high court.
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They, they work as well as to do within their constraints, but it could be a hundred X better
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if you ask me with sufficient funding and training and some interest put into it, it
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would be a hundred X better arbitration.
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Um, in our arbitration is basically like a court setting, but outside the court, you
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do it.
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It's a private court, you know, then in a manner of speaking, unfortunately in our country,
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uh, arbitration is dominated by retired judges, so they bring that particular approach to
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them.
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Uh, so they're also in insistent on following certain rules and unfortunately our courts
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are not very helpful when it comes to handling arbitration questions.
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But if you have a good professional network of arbitrators, if you have good institutions
#
which facilitate arbitration, you can all, most of the high value disputes which come
#
to court will immediately get moved.
#
And again, so what exactly is arbitration?
#
So it's like if you and I have a dispute, we go to court and they tell us, Hey, why
#
don't we go for arbitration?
#
Is the decision binding or yes, it is, it is, but so once we agree to go for arbitration,
#
the decision is binding, but it's guaranteed to happen within a certain amount of time.
#
So that is how the law should be.
#
Right.
#
And they've amended the law to try and make it that would then be the incentive.
#
Exactly.
#
Exactly.
#
Now the advantage for me is I'm not dependent on 60 other cases being heard before my arbitration
#
is heard.
#
I'm not dependent on the judge have not being on leave and so on.
#
We fix the dates at our convenience.
#
We figure out what's convenient for the arbitrator and us and a prime reason for a lot of arbitration
#
is confidentiality.
#
You don't have to make the documents public if it is a say commercial issue.
#
So in, in that sense, that is what arbitration does.
#
It's essentially like a private court, but it is, its orders will be enforced as if it's
#
the orders of a court.
#
You don't need to go to court again and say, make this the final decree and let's say,
#
yeah, done.
#
You have to follow it.
#
If there's any difficulty in following it, we'll smoothen the process.
#
So what the problem is in India, most of the arbitrations are what are called ad hoc arbitration,
#
which means you and I agree to arbitrate as a dispute.
#
And then we go looking for who will be the arbitrator.
#
Whereas the practice should be that we, you and I will agree that, Hey, there is this
#
institution which does arbitration.
#
They will select the arbitrator.
#
They have a certain set of rules.
#
They will guarantee that it will be done in one year, but we will go looking for an arbitrator,
#
somebody whom, you know, both of us can figure out, we'll do this quickly and we'll provide
#
us with this thing.
#
So you and I are both on the same page that we want this dispute to be resolved, right?
#
Supposing I want this delayed and you want this done quickly, then we can find ways to
#
delay.
#
Let me stay in court for a hundred years.
#
I'll just stay in court for a hundred years.
#
But I'm assuming that time with parties wanted this arbitration as an option.
#
And there are other things like conciliation and there are negotiations.
#
These are all mechanisms which our laws provide for, but no effort has been put into making
#
them effective alternates to litigation.
#
But these are also sort of, they strike me as solutions that treat the symptoms while
#
the, you know, the root cause of the disease, like you described the 19th century mindset
#
and the conventions and rules around the judiciary process.
#
These don't address those.
#
So they don't, but it has to be, if you see the judiciary as one element of a dispute
#
resolution process, right?
#
You will realize, Oh, hang on.
#
What's the big deal in having people file suits for everything, right?
#
They can go sort this out through mediation, conciliation and arbitration.
#
And if it is something you absolutely cannot resolve, then we get to the next stage.
#
And then the next stage is what say something like the commercial courts act in India tries
#
to do, right?
#
So I was part of the drafting process, the law commission of India, and there was an
#
existing draft, which was terrible.
#
And we figured, okay, that's, that's, there's no way that this can become the law.
#
And when we looked around the world, we studied how the philosophical approach to litigation
#
to a case has changed around the world.
#
And we found that more countries in the world put the judge at the center of the case.
#
Okay.
#
Now that you've decided, I need this to be decided by a judge.
#
Fine.
#
You're going to follow his orders.
#
You're going to follow his rules.
#
The judge will now say, okay, you have three months, complete all the documents, whatever
#
you want to file.
#
Uh, you have one week, finish everything that you need to in this one week.
#
All right.
#
I'm setting these five days for hearing evidence.
#
Do those judges have rule based guidelines, which tell them that this is a process within
#
this much time?
#
Yes.
#
Yes.
#
Yes.
#
Yes.
#
So we have also in that particular law, we have also amended the code of civil procedure,
#
try and update a little bit to say that, okay, now the judge will have the powers to say
#
in four weeks to this in eight weeks to this in 12 weeks to this and giving them no discretion
#
to extend the time.
#
Because what happened to the previous attempt at amending the CPC was everything became
#
discretionary.
#
Right.
#
And, um, the, and so far the way this law has been interpreted, courts are consistently
#
saying this is a law made to cut down time for it taken for litigation.
#
So we're not going to give anybody.
#
So this applies to what commercial cases are commercial cases above a value of one crore.
#
Okay.
#
So it is high value commercial.
#
They usually take a long time to dispose of because you'll find mountains and mountains
#
of papers.
#
Parties can lengthen it as long as they want to.
#
So the idea of this law is to cut it short, to say that, look, just tell us what are the
#
five points you're, you're disputing, right?
#
Tell us who will be the people who will come in.
#
So is it then mandatory?
#
Like if we have a dispute, which is more than that amount, is it mandatory for us to go to
#
a, so it depends.
#
Jurisdiction, jurisdiction.
#
So we have left it to the discretion of the state government because they know how many
#
such cases are there, but they can make it mandatory.
#
They can.
#
It is mandatory.
#
So for it, okay.
#
So it started with the Bombay high court and the Delhi high court, but usually one crore
#
surplus cases used to be filed.
#
So when the high court set up a commercial court and a commercial, a commercial division
#
and a commercial appellate division.
#
So all the cases were transferred there.
#
Now we are seeing more and more state government setting up commercial courts.
#
Um, the, this, the, this is not that much as to do a little bit with India's judicial
#
history.
#
I'll come to that a little bit.
#
So for instance, Karnataka just set up a commercial court, Rajasthan has set up a commercial court.
#
Uh, UP is in the process of setting up a commercial court and other, and Chatti's got a set up
#
commercial court.
#
So they're seeing it.
#
Okay.
#
This seems to work.
#
I think cases are moving quickly.
#
We're not getting stuck in this litigation and maybe it may be a good idea for you to
#
also set it up and it's, uh, and they're also being assessed by the government on, are you
#
setting up a commercial court, which it's easy enough.
#
The only thing is how well they train the judges, get the right judges, how well they
#
call it to the high court.
#
So we'll see over the few years, but this is the first attempt, I think, at really trying
#
to change the mindset of how our court should be like.
#
Fantastic.
#
So your argument also, therefore would be that if we, you know, we are trying to change
#
the rules of the game.
#
So read this mindset dominates and delivers justice faster and therefore fairer at these
#
commercial courts.
#
Why should that not apply to all courts?
#
Absolutely.
#
It should, but I think it'll take time.
#
The reason why I said it'll take time is that our profession, the legal profession, and
#
I say our profession, I mean legal profession, um, in India is extremely skewed.
#
Um, you can't expect that somebody who has the capacity to move a case quickly, uh, act
#
say for a high one crore kind of dispute will be able to do that for like a smaller dispute
#
where they're dealing with somebody who was barely paying them any fees.
#
Um, I sort of wrote about this.
#
I think 7% of lawyers in any court, right?
#
And I checked this at the trial court level and the Supreme court level, 7% of the lawyers
#
seem to have 50% of the cases and I'm considering each case to have the same value, but it is
#
not right.
#
I am sure that if I broke it down by the kind of case, how much money was involved, what
#
fees are being paid, I'm pretty sure that 7% of the lawyers are making about 90% of
#
the money.
#
Right.
#
Right.
#
Now that doesn't mean you ignore the remaining 93%.
#
They're handling a large number of cases, but they will not have the capacity to move
#
as quickly.
#
Right.
#
And if you, you don't want to risk imposing a kind of burden on the litigant that they're
#
not able to match up to you.
#
So if you start this as a practice, if people see, ah, this is how it is done.
#
And you know, maybe sort of adopt those practices or maybe if you find that the legal profession
#
gets more organized and people are able to do this in a better way, then of course it
#
can be extended.
#
But would you say that then this is a problem with the supply of lawyers in the sense that
#
you have those lawyers being supplied who can be part of the elite 7% who are making
#
all the money.
#
Yes.
#
But otherwise you have substandard lawyers, not to mean that word in a pejorative way.
#
That's absolutely right.
#
And that's absolutely right.
#
And we're seeing the effects of about four decades of neglect of legal education.
#
So can I then take a detour into that and into talking about legal education and where
#
has it gone wrong and what could change that?
#
So initially the law colleges are all set up by government and the GLC in Bombay, you
#
find GLC here, university law college here, you'll find GLC everywhere press governments
#
did put a bit into investing in law colleges and they did produce excellent lawyers, but
#
post independence, not to sound like I'm the guy blaming Nehru, but somehow the nation
#
sort of got obsessed.
#
We need more engineers and doctors and lawyers will come on their own.
#
What is there?
#
So it meant that most of the legal education now was taken over the private sector.
#
It was a kind of de facto privatization if I want to call it where law colleges could
#
be open.
#
So now you now have the bar council of India, which says, okay, find this law college meets
#
our requirements are allowed to open and function.
#
But the bar council would control the supply like they would, they would be doing licensing
#
and stuff.
#
Yes, yes, yes.
#
They would.
#
I mean, the control is exercised very loosely in a manner of speaking.
#
There was literally no control.
#
There was like, fine, if you want to set up, you set up as long as you pay us the fat price.
#
That is basically what it became after a while.
#
Sometime in the eighties, they realized, oh no, you know, like this time to sort of take
#
legal education seriously.
#
And which is when we had the national law school set up, they weren't sure, will this
#
work, not work.
#
But when it's in about a decade and then you realize, oh wow, you know, we're like actually
#
succeeding at this, you set up more national law schools.
#
Now I think the number is about, at about 20 and they're mushrooming a lot of private
#
universities have also sort of seen this is the standard we have to aim to, but we don't
#
have to meet them.
#
But the fact is that lawyers are in the system.
#
The fact is the law, a law degree was positive.
#
One of the cheapest degrees you could get, you know, as a professional degrees, medicine
#
is expensive.
#
Engineering was expensive, dentistry, whatever, everything was expensive.
#
But as a professional degree, the law was the cheapest to get anybody and everybody
#
could do a law degree.
#
And it's great in terms of ensuring the number of degrees are there.
#
But when they actually entered the profession, they realized we're not going to be able to
#
make a living.
#
Right.
#
Right.
#
So it's a struggle for the remaining 93%.
#
I think what you're seeing in terms of lawyer strikes, what you're seeing in terms of a
#
goondism by lawyers is a reflection of this.
#
It's a reflection of the fact that I have invested six years of my life trying to become
#
a lawyer.
#
I have.
#
But now I realize that it's useless.
#
There's nothing else I can do now.
#
And you try to make a living in some way or the other and you find a bad faith ways of
#
doing so.
#
There's a supply demand mismatch there.
#
Why is that happening?
#
Why is that happening is because so the mismatch happens usually when there is no price information
#
trickling through.
#
Absolutely.
#
Right.
#
Right.
#
Actually, Adam Smith describes this very well and I can do no better than quote him.
#
Even he points this out when he talks about the legal profession in the 18th century England.
#
He says that his favorite number seems to be 20.
#
So it's not as if he does have the exact rate uses 20 all over the place.
#
So he says of 20 people, only one lawyer can succeed and he'll make as much as the remaining
#
19.
#
Right.
#
Right.
#
He says that because in the nature of the legal profession, as it stands, all 19 believe
#
they can be that one person.
#
Yeah.
#
That's a survivorship bias.
#
You see the guys who succeed, you see the guys who succeed to think I can become that
#
person, but you don't actually know what happens to the remaining 90.
#
So they kind of disappear.
#
There is that.
#
The second thing also is that the law is a profession where just getting a degree doesn't
#
help you.
#
It means you fulfill the most basic threshold to be allowed to wear that black coat and
#
go into court.
#
But to be a successful lawyer, you need about 10 years worth into the profession.
#
Right.
#
Um, and he's talking about a situation where you say don't have the advantage of somebody
#
handing over the practice.
#
You're your father.
#
So you'll apprentice somewhere.
#
You'll clock somewhere.
#
You'll clock somewhere.
#
You'll learn the ropes.
#
You try desperately to get clients and hope you survive long enough.
#
So once you survive, once you cross the 10 year threshold, your peers have all fallen
#
off the radar.
#
So now you make as much money as 20 of them.
#
Right.
#
That's what happens.
#
Is this like this across the world?
#
Like how is it in the U S in the U S it's a much more organized profession.
#
You see in India, 90, I would say about 95 to 99% of lawyers are in solo practitioners
#
or maybe no more than two or three, whereas around the world as economies, economies develop,
#
the scale of legal services needed requires law firms in India.
#
Law firms are still becoming bigger and bigger in size, our biggest law firm just split in
#
half.
#
So we can't even just say that, uh, you know, uh, that we are getting there, uh, and law
#
firms in India keep splitting into smaller and smaller sizes.
#
Uh, but ideally the services require you, you to have a full fledged law firm.
#
Uh, we have not gotten there yet.
#
Profession needs to be more organized, but what do you think this is something we'll
#
evolve towards in India or something needs to be done to, uh, evolve towards that.
#
I think to be done, we need to sort of ensure that people understand this is what getting
#
into the legal profession means that, uh, you're probably going to fail and that there's
#
no other way to put it.
#
Uh, you've got a law degree, uh, congratulations, but you're probably going to fail in the profession.
#
This is kind of like Bollywood.
#
Like I live in Versova in Mumbai and I go to the cafes and there are struggles all around.
#
And the thing is everyone is a survivorship bias again.
#
Everyone is thinking of the, uh, Manoj Bajpayee or the Nawazuddin Siddiqui or the struggles
#
who make it.
#
They don't see it at most.
#
They don't make it and I'm really surprised to hear from you to the lawyers like that
#
because I would have thought, you know, as a profession, it would be more like medicine
#
and engineering.
#
No, it's not because even medicine, medicine, there are hospitals, right?
#
There are hospitals and there's only a small layer of everybody works within institutions
#
and institutions in the law.
#
Unfortunately we don't because the law firm being the default is not there for us.
#
The default is still as a solo practitioner.
#
You set up this thing, even our courts, you know, like the way they allocate chambers
#
to lawyers, right?
#
They're still obsessed with the small solo practitioner.
#
They're not thinking about law firms, the big institution and even then their filings
#
are a jolly LLB that I think that between the two movies, they pretty much cover most
#
of the pathologies of the legal system and yes, there's an element of exaggeration, but
#
I think they've nailed it.
#
They're actually super firms.
#
I mean, they're good entertainment, but they also, you know, they nail a lot of the things
#
in a lot of things, right?
#
So let's move back from legal education to the law itself.
#
A lot of the solutions that you kind of discussed take the pressure away by providing alternative
#
ways of arriving at judgements, whether it's mediation or arbitration or the commercial
#
courts that you pointed out, but do you then think that is simply a matter of finding all
#
these fixes or is there some fundamental change required and how hard or easy is that fundamental
#
change to actually bring about what is required for it?
#
So I don't see a fund because all these things put together will create that fundamental
#
change.
#
Sure.
#
But that 19th century mindset.
#
Yeah.
#
So it requires it.
#
I think the fundamental change is for the top section of the legal profession and judges
#
to accept that the system is broken.
#
Do they?
#
They don't.
#
That's the, that's the pity.
#
I mean, yes, we saw the press conference.
#
That means that's the first inclination that guys, I don't think things are working out
#
as they should, but there's a sense of complacency at the top rungs of the profession that things
#
are fine.
#
There are problems.
#
We'll sort it out.
#
But what I do know is that from the court's data itself, the number of cases being filed
#
in court is falling.
#
Ignore criminal cases for the moment, because obviously they're a function of the population.
#
Civil cases experience around the world shows as a country's population increases, as the
#
economy grows, right?
#
As it goes from becoming a low income to middle income and so on.
#
The number of civil cases increase, more transactions, more disputes, more laws, more regulation
#
and so on.
#
So it increases across all levels of the judiciary between, I think the middle of the first decade
#
of the 20, 21st century.
#
And today, number of cases filing started plateauing, right?
#
This was first noticed by three American scholars, C.T.L.
#
Carl and three Nick Robinson and Theodore Eisenberg, they wrote about it.
#
Nobody noticed it in this country.
#
I mean, they're still working on the issue, by the way, but I've been trying to spread
#
the word.
#
So I decided to follow that up and see, okay, they looked at data in the early part of the
#
21st century.
#
They looked at the latest data and I wrote about this for APW, the article is still up.
#
Cases filed across courts are, civil cases are falling.
#
And that's a sign of the people's loss of trust in the judiciary.
#
Yes.
#
Yes.
#
That's the sign of people voting with their feet.
#
They are saying, you know, there's no point going to court.
#
They're saying that unless I am put in a situation where I have absolutely no other choice, I
#
will not go to court.
#
This tells you the system is broken completely.
#
It is.
#
It is.
#
And the problem is there is a total complacence in the higher levels of the judiciary and
#
the legal profession that this is what it is.
#
You know, the other day, Professor Madhav Menon, who was one of the persons behind the
#
founding of the National Law School, still a legal alumni in every way, he's like, why
#
do you want to bring in all these numbers and stuff inside the judiciary?
#
How does this help you?
#
This is dangerous.
#
What does it tell you?
#
But look, look at what the numbers are telling us.
#
That's shocking because data tells stories.
#
These are the stories.
#
Exactly.
#
This should be the most pressing story.
#
It's not as if I dug up these numbers from some arcane corner of the country.
#
It's that the Supreme Court has put out these numbers.
#
They are there for the public to see.
#
Unfortunately, the court itself is not that interested in looking at these numbers.
#
Unfortunately, nobody else is really talking about it.
#
But guys, this is what is happening.
#
People are actively voting with their feet and one of the courts.
#
Now you can say possibly a lot of the cases are going to tribunals, but not that many
#
tribunals are there to take away that many cases.
#
You can say alternate dispute resolution, but that's available only to a very tiny
#
section.
#
A few years ago, Justice D. Y. Chandruthu was currently in the Supreme Court when he
#
was a judge at the Bombay court.
#
He was speaking at two hours in a lecture and he said, you know, in court I told parties
#
that this is something you can resolve by mediation.
#
I'll refer you to mediation.
#
So parties agreed, nodded, lawyers looked at each other, nodded.
#
Then at the end of the day, the lawyer for one of the party came to his chamber and said,
#
yes, what is it?
#
He said, sir, I have one small question for you said, yes, what is mediation?
#
We may think it's so obvious it's there, why don't you use it?
#
Even in the legal profession, people don't know.
#
This was in Bombay.
#
I'm not talking about some small rural court.
#
This was in Bombay, in the Bombay high court.
#
A lawyer comes up and says, what's mediation again?
#
So now this is, this is what you pointed out is a problem of awareness at two levels that
#
one the people who actually run the judiciary aren't aware of these deep problems.
#
And perhaps in some cases ignoring the data and don't take it seriously and deeper down
#
even the regular legal profession, they're not as aware of it either.
#
So my question to you is that is what is needed to get us out of that 19th century mindset?
#
Is it a cultural change or is it a change of the rules of the game?
#
So one attempt is being made with the rules of the game, uh, with commercial courts, right?
#
The idea, which if you see the law commission report, which prompted this commercial court
#
law is to say that if we change the rules and people start getting used to following
#
these rules, it'll bring about a cultural change.
#
That is one attempt at it, but I think there's a second larger attempt, which needs, which
#
say maybe this won't be able to do.
#
They will be able to do it in the context of say civil suits and so on and so forth.
#
But there's a larger cultural change needed in terms of who becomes judges, who becomes
#
senior advocates and so on.
#
It's still a very small pool of people.
#
It's a very small, small self-selecting pool of people is I think the most dangerous thing
#
for an institution, any institution, the rules are fixed.
#
The way it works is fixed and people keep coming and going, you know, the institution
#
is going to die.
#
If it's the same people with the same thought and the same approach and have no understanding
#
of what's happening in the outside world.
#
That's unfortunately what's happening to our judiciary and the high levels of the bar.
#
Uh, my one long-term project, which I hope will cause me to get contempt of court notice
#
is to create a family tree of all the judges of the Supreme court of India to see how many
#
people are related to other judges and I'm sure I will find a shockingly high number.
#
I can expand that to say how many of their families, um, how many of their fathers, uncles,
#
brothers, or even in some cases, mothers, uh, aunts and so on were senior advocates
#
in the system.
#
I'll get an even shockingly higher number.
#
Some of this research is there.
#
Uh, there's an, there was a great American academic, George H. Gadbois.
#
His book is fantastic.
#
It's called the judges of the Supreme court of India.
#
He ma he gives a brief biography of each and every judge of the Supreme court between 50
#
to 89 and the depressing outcome is that it's exactly the same kind of person who has been
#
coming to the Indian judiciary since the 1950.
#
And what will change this?
#
What will change this is changing that.
#
So two ways to change this.
#
One is that the profession widens, right?
#
Uh, the profession widens so that parts to success are more.
#
It's not that you survive for 10 years and therefore you succeed, which means depending
#
on your parents.
#
Does any law graduate in the country today hope to become chief justice of the Supreme
#
court someday, or is it only a privileged few because of the background and so who have
#
that clear path?
#
Chief justice of India surprisingly has been fairly diverse.
#
Right.
#
We have had a justice Kapadia who started as a law clerk.
#
I mean a clerk of a lawyer, not even a law clerk, a clerk of a lawyer to become a chief
#
justice of India.
#
We've had a justice who was the first in his village to complete an education who has gone
#
to become the chief justice of India.
#
Um, we have had people who have overcome difficulties to become the chief justice of India, but
#
there it's a selection, right?
#
At that point you're like, I want this person, somebody somewhere has decided, I want this
#
person to become a chief justice, but we're talking about the larger system.
#
I'm talking about the fact that currently there are about 700 judges at the high court
#
and the Supreme court level and many more below them.
#
The problem is there is a glass ceiling.
#
The glass ceiling is that actually the lowest level is the most diverse in the lowest level.
#
States have implemented reservations.
#
More women are present in the judiciary, your wider representation of sections of society.
#
But because the next level, you, it depends on the discretion of about five, usually men,
#
five to six men, they choose people like them.
#
So their prejudices perpetuate themselves through generations and you have those guys
#
rising through rising through the system.
#
So one way to undo this is to what the government tried and botched very badly in 2014 is to
#
change the appointment mechanism that what they tried to do was to say what those to
#
make it in a, it was to take the tangent of the issue on completely different pattern
#
should be the government or the judiciary.
#
Actually that's not the problem.
#
The problem is who are the people who are being appointed, right?
#
It honestly to me doesn't matter anymore if it is three judges or five judges and three
#
government or three judges and five government.
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It does not.
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You need to be able to say, we want a judiciary which will cater to a wider section of people,
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which will ensure that, you know, people are, have a shot at being judges of the high court
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and even the Supreme court, irrespective of whether they were the sons or daughters of
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famous lawyers.
#
And if they have worked their way through the system, a high court position should be
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a reward for them or not reward or should not be a reward, should be a right to them.
#
So it should become, I think a rule that the 10 best performing judges every year become
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high court judges at the lower level.
#
You will instantly solve capacity problems that I mean, people will keep raising issues.
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They are not good enough or they could be much better.
#
I mean, this is going to be there, but if you're not going to make any effort at improving
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the quality of the subordinate judiciary, you're going to be stuck with the small elite
#
of people becoming judges again and again, their children becoming judges, their friends
#
becoming judges, their chamber mates becoming judges.
#
And you'll be stuck with this elite, which loses touch with what's happening.
#
And in fact, one of the best books I've read in recent years, Super Forecasting by Philip
#
Tetlock has a chapter about how diversity leads to better decision-making with study
#
after study has shown that even diversity for its own sake will lead to better decision-making
#
more than any other factor.
#
And when you talk about the judiciary, the decision-making is essentially everything.
#
Exactly.
#
It's, it's mind boggling that we actually have a system that works the other way.
#
Exactly.
#
And you need this kind of diversity in terms of representing India's diversity, I mean,
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they maintain diversity in the way that you will have 25% from South, 25% from West East
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and North.
#
That's the only diversity that's maintained.
#
It sounds like cricket.
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It is.
#
Back in the day.
#
This is actually empirically shown by George Gadbois in his book between the 40 years,
#
the appointment mechanism has ensured that there is a roughly equal representation from
#
the four broad regions of India.
#
But you want diversity in terms of caste, you want diversity in terms of class, you want
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diversity in terms of gender, you want diversity in terms of people with different life experiences.
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People are first generation lawyers, people are first generation graduates.
#
And unfortunately we're not even thinking on those lines in the system.
#
It's still becoming a very self-selecting elite.
#
And that sort of shows in the way in which they're not thinking about the institution
#
at all.
#
Right.
#
You, we are now in a system where each year justice is like, I have one year for retirement.
#
Let me just pass this audit or made out controversy.
#
No, there's no trust within the system to let's change these things.
#
Right.
#
It's become like a, I have settled into this.
#
I have one more year to retire.
#
I will quietly pass this through and let's hope nothing happens to us to actually bring
#
about change is a cultural one where the people who are running the system want to do it.
#
And therefore they change the rules of the game.
#
And our problem sort of is that because you don't have enough diversity of thought or
#
diversity of representation, you have the same little narrow clique out there who are
#
just content to let their time go by.
#
So, so now tell me something very often in other fields, like I've done so many episodes
#
on different aspects of public policy and the question always comes back to, okay, so
#
what can the government do to change this and how do you get the government to change
#
this?
#
But it's a, it's a given that the judiciary is, should fundamentally be autonomous.
#
Is this an area where the government even has a role?
#
Yes.
#
I think the government has a role, but unfortunately the government has approached this in a bad
#
faith way.
#
Right.
#
And the unfortunate history of government judiciary relations in independent India has
#
been a mutual bad faith relationship.
#
The judiciary suspects and has put these barriers in place to prevent government intervention
#
and government intervenes to say, now we want to be able to control you guys.
#
So it's been an antagonistic.
#
It has been an antagonistic thing and the relationship is supposed to be antagonistic,
#
but not in this way, not in a bad faith way, you're supposed to be able to say what you're
#
doing is not right.
#
And you're supposed to be able to say, we are also a check on you, but not in the sense
#
of I want to control you or I'm going to treat everything you do with suspicion.
#
That is not the kind of antagonism that we want.
#
Um, it's diff, it is going to be difficult for the government to test it and tell the
#
judiciary what needs to be done.
#
It has to be the best that the government can do is to sort of play a facilitative role.
#
Right.
#
And one of the ways is to say that guys, please accept this reality.
#
Okay.
#
Uh, we want things to change and we'll help you make the change.
#
It's not as if that's not impossible, but they can't mandate the change.
#
They can't mandate the change.
#
They can't.
#
That's the thing that you can't manage the change.
#
So this is a good thing, which is, yeah, which is a good thing.
#
But the, and I would think that the NJC case or then the NJC saga would have happened very
#
differently if the government had, and in good faith had said, we want to hold consultations
#
with the judiciary.
#
Give me a TLDR.
#
What saga would case?
#
I'm talking about the judicial appointments commission where the Supreme court struck
#
down the constitution amendment, right?
#
To say that we're adding a law minister to the appointment process and so on and so forth.
#
Right.
#
If the government had said, and I'm not saying this, this government did it badly, that which
#
are essentially the same government, it was very flawed when you said, okay, we'll come
#
up with this bill.
#
We'll pass it in parliament.
#
We'll comment the constitution and everything will be fine.
#
If you had said, taken a draft of the judiciary and said, guys, we think this needs to change
#
and it's not because we want to control you.
#
We think that there is some issue with the way in which appointments is happening.
#
And we were considering how best to address it.
#
We have an idea.
#
What do you think can be done?
#
I think you would have had a very different reaction because the experience of lawmaking
#
in India shows that the more involved stakeholders, the more robust that law will be.
#
And the judiciary here is the stakeholder in a law when it comes to appointments, when
#
you've sort of shut them out of the process and said, huh, we'll pass a bill.
#
You better follow it in the future.
#
You're going to get a reaction to it as well.
#
So which is why I think that is what the government's role should be.
#
The government's role really should be, look, it's easy to write checks, right?
#
The judiciary pretty much gets what it gets, what gets what it wants.
#
And half the time it's not able to spend it because they're not trained in how to run
#
an institution.
#
Judges end up becoming judges because they're successful lawyers.
#
At most they may have managed the office of 10 people or 15 people, not a sprawling institution
#
of the size of even say the Karnataka High Court or any, any average high court, I think
#
has hundreds of employees.
#
Right.
#
Not talking about the really tiny ones.
#
So they haven't even evolved mechanisms of how to do this kind of internal management.
#
They don't and they don't have the training or the understanding of how to manage this
#
body.
#
They learn on the job.
#
Some of them do a good job.
#
Some of them don't do a good job, but I think there needs to be that awareness of the judges
#
as well as saying, okay, look, you know, our role has changed.
#
We are not just the guys who come to court at nine o'clock in the morning and leave
#
at six in the morning.
#
Having spent the bulk of our day deciding cases, we are running this institution and
#
we're in charge of running this institution.
#
So we need to put in place mechanisms that make it easier for us to run this institution.
#
We can't just rely on our administrative staff figuring out how to do things when we give
#
these grand pronouncements and then hoping things work out.
#
So there needs to be that level of acknowledgement as well.
#
And the government sort of saying, we're here to help you, right?
#
You figure out, you know, what would work for you best and we're here.
#
So the government can at best play a facilitative role.
#
But I still think the pressure for the change will come bottom up.
#
The pressure to change will come bottom up when, you know, lawyers start realizing that
#
nobody's coming to us anymore, right?
#
Our profession is increasingly becoming irrelevant and that we are, yes, we have these few highly
#
important cases, a few highly important stuff, but at the end of the day, our profession
#
no longer enjoys the kind of respect or the kind of dignity that other professions are
#
handed that people are conscious that even the smart, talented young people leaving law
#
colleges are saying, thank you.
#
I'd rather go to a law firm and work for a corporate or work for an NGO or work in policy
#
than come to the court and decide to be this thing.
#
So when they see that, you know, hang on our profession is literally dying at the roots.
#
That is when I think there will be some pressure to, you know, push the thing forward.
#
So this has been a very illuminating conversation.
#
Let me end by asking you two questions, therefore, that one, what makes you hopeful about the
#
judiciary in India and things changing for the better and so on, and two, what makes
#
you despair?
#
In fact, let's, let's talk of the despair.
#
Sure.
#
What, what, what makes me despair is to sort of see the state of the higher judicial institutions,
#
the state of the high courts in the country and the Supreme Court.
#
The fact, I mean, what I've read the news yesterday, three judge Ben says are the three judge bench
#
was wrong and saying a three judge Ben judgment is wrong.
#
I was going like, Oh my God, do you guys just realize how idiotic you sound?
#
It's a part of a bigger issue.
#
I mean, we can go to the niceties of who was right and who was wrong, but you, you see
#
that there is a complete and total breakdown of trust within the institution that as an
#
institution, you have stopped functioning.
#
You're just a bunch of judges sitting there and doing things.
#
What gives me hope is actually the lowest level.
#
What gives me hope is that on a daily basis, yes, you may say that they're slow, they're
#
inefficient, they're terrible, but your civil rights and my civil rights are being defended
#
by the guys at the lowest level, by the magistrates, by the civil judge, junior division, senior
#
civil judge, senior decision.
#
They're the ones who do the painstaking task of conducting a trial.
#
They're the ones who ensure that everybody gets a fair hearing.
#
They're the ones working in the worst possible conditions, but still, you know, inspiring
#
sufficient confidence that, okay, you can at least trust them to this extent.
#
They're still doing the thing in a terrible condition and in a horrible condition, but
#
they still turn up.
#
They do their job.
#
You still have judges like Judge Meets Singh, who in the face of enormous pressure in the
#
Ram Rahim case, decided correctly.
#
You have a judge like the Sousa, the Karnataka High Court judge in the face of such enormous
#
pressure over Judge Alilita, fantastic judgment, just did his job, right?
#
You just need and there are people who are just doing their jobs and that's really what
#
we need more of.
#
So that gives me hope.
#
But it also gives me hope is the fact that at least with the law schools in the picture
#
and the fact that even the private law colleges are pushing to improve the standards and so
#
on, the supply of good lawyers, the supply of good lawyers is going up, that more and
#
more people are choosing law because they see a future for themselves in the profession
#
that they see that, yes, you know, there's something good that can come out of this.
#
We are seeing that people are seeing that the law is not just a 19th century institution,
#
which we are stuck with somehow, but we need to bring into the 21st century.
#
So we're having more informed conversations about the law.
#
I see and people may say this is negative, but I see this as a necessary positive.
#
The courts are being covered like never before, right?
#
I would like our newspaper to do 10x, but I think we're doing 10x of what we were doing
#
two decades ago.
#
Today people are live tweeting from the courts.
#
People are following what order was passed.
#
People are following cases, you know, with great interest, understanding issues, knowing
#
this is how courts work and they want more.
#
And I think at the end of the day, the court's credibility as an institution rests on only
#
one thing.
#
Forget everything else.
#
It rests on the fact that it's the only institution that today you can go and see how it functions.
#
You can't walk into a bureaucrats office.
#
You can't examine their files unless you follow a very detailed procedure.
#
You're not allowed to enter into parliament and you know, unless, until we got television,
#
nobody knew what was exactly happening in parliament and to some extent improving the
#
judiciary, the onus is on us, the citizens, because this is the one institution which
#
is actually transparent.
#
Transparent.
#
Yes.
#
So, uh, and there are of course issues of how to make sense of judgments and yes, our
#
courts are crowded and all of that, but you can see it working.
#
The public can go and see it working.
#
The litigant can go and see it working.
#
And I think the most scrutiny there is, and you don't, you don't just leave it to the
#
lawyers and litigants to scrutinize the courts, you leave it to the general public to scrutinize
#
the courts.
#
The more people scrutinize the courts, the more people say, Hey, this is not working
#
or something is seriously going wrong.
#
I think that's what gives me hope.
#
That's what gives me hope that there'll be enough pressure put on the fact that on the
#
judges, on the lawyers and everybody has said something needs to be done.
#
That's a hopeful and inspiring note to end on.
#
We don't just have to lament the state of the judiciary.
#
We can be part of the change.
#
Exactly.
#
Alok, thanks so much for coming on the show.
#
I've learned a lot from you today and it's, it's an honor.
#
My pleasure.
#
If you enjoyed listening to this episode, do follow Alok on Twitter at Alokbhai.alokbi.
#
You can follow me at Amit Varma, A-M-I-T-V-A-R-M-A and you can browse past episodes of The Scene
#
and the Unseen at sceneunseen.in.
#
Thank you for listening.
#
If you enjoyed listening to The Scene and the Unseen, it makes complete sense for you
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#
Pragati is a magazine I edit and the Pragati Podcast is hosted by two of my colleagues,
#
Pawan Srinath and Hamsini Hariharan.
#
Every week, Pawan and Hamsini analyze views and news from India and the world and talk
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to experts and practitioners on a wide range of issues.
#
Episodes out every Thursday.
#
So there's your midweek fix right there.
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There she stands, a podcast addict outside the bank, having traveled several miles to
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get in with other poor souls like her.
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The journey, though daunting for this youngling, will have some comfort because she has downloaded
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You can see more of her species on ivmpodcasts.com, your one stop destination where you can check
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Happy listening.