What do I think could be my worst nightmare? Falling in a 50 feet long deep hole? Probably not although I am badly claustrophobic. I might even expect a miraculous survival from the proverbial devil and the deep sea, but never if I am caught under to the suffocating bureaucratic clutches of the India police and the Indian trial court.
The plight of the Bangalore Software engineer Lakshmana Kailash K is so unfortunate. The poor guy has to spend 50 days behind the bar due to callous and lackadaisical Pune police who didn’t do their home work properly. He was inadvertently charged with cyber crime. I wonder how this travesty of justice could be purported in a modern society that boasts to have a free and modern judicial system. Every time I hear miscarriage of justice of this type, my confidence in our judiciary is shaken to the core and my hope that we will ever be an evolved society plummets down to abyss. I have been lamenting on the sordid state of judiciary as well as the law enforcement in India for quite sometime. This kind of leads to the next logical question i.e., is there any respite from the ordeal of this lawlessness? An impromptu answer would be to revamp, revamp and revamp radically.
We need some kind of impetus acting on our institutions akin to those of “evolutionary force” responsible for bringing about adaptation in the organisms. The best known force to bring about sustainable positive changes in society in recent times has been the market forces. The criminal justice system in India is operating in a market vacuum; the absence of market force is what has lead to the mucky state of the criminal justice system in India.
Prima-facie it may be difficult to correlate market forces and judiciary, but I would establish in the subsequent section that the two are indeed correlated.
Let’s begin with a question, why the justice is so hard come by in a free country like India which has an excellent constitution comparable to those of the most modern societies around the world. Constitutional empowerment in my reasoning is like “system capability”, and not being capable to deliver the promised performance would be absence of “system maturity” or lack there of. Our constitutional provisions are capable of protecting our rights, but the delivery organ, the judiciary, is immature to render the services. A system can remain complacent with immaturity only if it has the luxury to operate in absence of a countervailing force. The countervailing forces impinge scrutiny, and promote an environment which rewards competence and punishes incompetence.
Imagine the nascent days of mobile telecommunication in India, the service was marred with inefficiency, the delivered value was abysmal compared to the prices consumers paid. As the market forces grew stronger the market players grew nimbler and agiler, and innovated faster than the peers to remain in business, the result is evident from the rapid growth of telecom market and service excellence it has achieved.
Imagine if there are 5 law firms in India each with a turnover of about US 1B (approx. 4000 crore), a dozen smaller law firms with revenue ranging from US 100-500 million, that is we are talking about 25 thousand crore worth of legal services rendered every year in metros and the big satellite cities. The firms would strive to create customer value to remain in business. They will exert huge pressure on the entire value chain. While they would compete with each other, their combined clout would lobby for an agile judiciary, creating pressure on the system to remove the barriers. The criminal defense would change beyond recognition, the firms would contest the state fiercely with quality legal argument, using science and technology to corroborate their case. Loosing a case may hurt the brand value of the firm; therefore firms would engage quality professionals, which in tern would create a market space for the quality legal professionals, drawing talent from all over. The increasing criminal defense verdicts would put pressure on the prosecution to ruminate, evolve and embrace technology and infuse talent in the system to resurrect itself.
In United States, the state would never be able to prove a traffic violator guilty unless they have video and still images of the violator committing the alleged misdemeanor or crime. I am provoked to think what would have prompted the installation of cameras on the streets of America. This is what I discerned, the access to quality legal services would make it impossible for the state to prove guilt or incarcerate the accused. The agile legal system would render the verdict on the first day of the hearing in absence of evidences that prove the guilt beyond the reasonable doubt. If state looses repeatedly, it would reflect badly on the district attorney office responsible for representing the state in the case against the accused. An overreaching media would fuel the public debate over the ineffectiveness of the District Attorney’s office and police in restraining the traffic violators. The DA and the chief sheriff may loose the job in no time. This kind of makes it inevitable for the for the law enforcement to have video cameras installed on the patrol vehicles or on the street lights, in absence of such device they may just ignore the offence, as anyway they can’t prove the guilt. The argument is that a strong market of legal services eventually ensures that justice is served.
Imagine how difficult would it be for a firm to substantiate the customer value in a murder trial in India where the verdict is unlikely before a decade. A billion dollar firm would force the underlying business processes in judiciary to evolve to have a expedited justice delivery system. Failing to reengineer such a change in judiciary would jeopardize the very existence of the law firms and the market space they operate in would collapse. You may wonder how a billion dollar firm would make the court act with more agility. Well a billion dollar firm would certainly have no magic wand to make this happen. The firms for profit are known to strive harder to remain in business profitably. The people working for the firms would have to innovate faster to meet their KPIs. The firms desire to remain in business would push the market space hard enough to embrace change. This is known to work in all market economy.
The apocalypse may argue that it would not work for the socialist India. Well I would remind them that when HLL’s rural marketing initiatives failed to yield results, they discerned that the root cause was not the ineffectiveness of their marketing campaign, rather it was the scantly disposable income of farmers. In fact then HLL Chief M S Banga met the Prime Minister to propose a new model for Public Distribution system of food grains, which would allow the government to buy the food grins at a price much higher than the MSP (Minimum Support price) from the farmers, endowing them with more wealth. In recent times, I found that the marker innovations of reliance Infocom forced the Government to bring about many reforms in Telecom market. I envision the same for the litigation market space (if I can use this term) with the advent of legal firms in India. If this has happened in American I don’t see a reason why this wouldn’t happen in India.
The evolutionary pressure of market is known to force everyone to evolve. The law firms may take the defendants right to public debate in media to exert pressure on the law enforcement and the judiciary. The state may feel compelled to set up US like District Attorney’s office to take cognizance of the criminal offences committed in city, bringing the police force under the surveillance and scrutiny of district attorney. The district attorney’s office would act rather professionally than the public prosecutor who often colludes with police to mint money. The district attorney’s office may introduce the US style plea bargain, to reduce the work load and focus on the key cases to address the crime effectively.
The “system maturity” of the judicial system that I mentioned in my earlier paragraph can only be ensured through market mechanism and not legislation.
The supreme court of India recently allowed media persons in the court room. As argued in this blog the decision will prove to be milestone in achieving free, fair and agile justice system. As the media penetration increases the presence of media in the court room will impinge the evolutionary pressure on the judiciary. Recently the US police is experimenting with the idea of installing camera in the pistol cops use, to defend them against reckless shooting charges in the court room. I planed to write a sequel to this blog after the supreme court made this observation, but never got time, that's why thought of leaving this comment.
Cheers!
SolitaryKartik
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Off late I have been been taking Ginko Bibola to boost my activity in the brain. It kind of keeps my brain from caving in to hibernation. Pretending you were serious when you made the comment, I believe Ginko Bibola is working…well I may be wrong, you are seldom serious in your comments J
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After long time read something bright on ur blog.. Nice new thoughts..:)
Happy to see u back with thinking brain..
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I agree what we need is more particiaption of the litigants in process making . Currently our system is such that 90% of people in prison are undertrial.
The reasons are many. We have too many laws defined as criminal . Too many sections as Non bailable . The police have gotten away with a investigation system which is more harassment oriented rather then fact finding oriented.
Typically they ask an accussed to report to police station at 9:00 A.M. and then make them to wait till 6:00 P.M. and then ask them to come against.
Many innocenct people are harassed. The lack of courtsey , politeness in our police system is appalling .
Crime should be punished by doing fact finding and then making a proper case not by using procedure to harass.
There is never any reason to jail anyone on a fir except in case of organised crime racket , very severe crimes like loss of limbs or murder.
Our laws are such that sometimes even accidents are treated as crime . Its sad when truck drivers tell me that instructions are to them that if an accident ensure the death rather then help becuase if you do help then you will be made to face criminal charges.
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