Data and justice: connecting the dots
NOTHING has emphasized the value of data in recent times as much as the Covid-19 pandemic. Data, big or small, is the principle means by which to understand the virus: compute the numbers of those infected, map patterns, and predict how it is likely to continue to spread in the future. It shapes public policy as much as it does private response. It is no exaggeration then to say access to data and its implications can be the difference between living and dying. From data we gain not only an understanding of the public health situation but also off-shoot socio-economic dimensions like how the pandemic heavily penalized the poor and marginalized.
Publicly available official data presents huge opportunities. Maintained through tax payers’ money, it is key to identifying problems, setting objectives, creating innovative solutions and measuring outcomes. Nationally, a number of surveys are undertaken for public services; for instance, perception studies, or for the evaluation of outcomes. In health for instance, large population-based surveys such as the National Family Health Survey (NFHS) and the District Level Household Survey (DLHS) aim to provide high-quality data for development of policy and planning, monitoring and evaluation. Such surveys, among others, have been used to gather information on aspects such as fertility, mortality, and family planning.
Data for the justice system ought to work in much the same way. Yet, there are numerous drawbacks with data collection methods across the justice system.
Consider the following: (i) As of August 2020, there were 3.36 crore cases pending across courts in India. 8 states have over 20% of their cases pending for more than five years in their subordinate courts; 37% of West Bengal’s cases fall into this category; (ii) Prisons in 21 states/UTs are beyond 100% occupancy, with Uttar Pradesh’s prisons being overcrowded by nearly 70% over its own sanctioned limit; (iii) Across police, prisons, judiciary and legal aid, there are high vacancies in essential positions. On average, 20% in police, 31% in prisons and 20-42% in the judiciary; and (iv) Women are poorly represented in police and prisons. Their overall share in the workforce, across functions and hierarchies, ranges from 10% to 35%.
The data above has been sourced from disparate government agencies and dashboards: reports published by national data collection agencies such as the Bureau for Police Research and Development (BPR&D), the National Crime Records Bureau (NCRB); or the National Judicial Data Grid (NJDG): seen as the putative source for real-time national data on pendency and case disposals across courts. Each data point has implications for other areas along the ribbon of justice. But in real life each department and indeed state has different times for collecting and publishing data and different methods of recording it. For the most part valuable information inputs remain siloed in individual departments. This makes it hard to harmonise information in service of holistic policy interventions.
Since independence, innumerable commissions and committees have made recommendations to improve the functioning of the justice system. The 245th Law Commission Report on Arrears and Backlog: Creating Additional Judicial (wo)man-power,1 for instance, called for ‘urgent steps be taken to evolve uniform data collection and data management methods’ in courts. The NJDG, though real-time, is a repository of limited information (relating only to pendency and disposal across courts). Illustratively, the Supreme Court’s own Annual Reports have also been critiqued2 for data errors and inconsistencies regarding the number of cases pending and disposed of annually.
Recommendations are also provided for by these bodies for each sub-system individually. In reality the working of all are interlinked. Just as efficient functioning in one may bolster the other, the consequences of deficits in one reverberate across the whole. The constellation of available figures achieves greater clarity and relevance once brought together to present the whole picture.
In some ways the India Justice Report 20193 sought to overcome this deficit. Conceived as a first of its kind ranking of the capacity of the justice system to deliver to mandate, it consolidates data, otherwise disparate and siloed, to present a composite picture of the state of justice delivery for policymakers, dutyholders, civil society and other stakeholders. Using only government data, it measures quantitatively the capacity of four ‘pillars’ – police, prisons, legal aid and the judiciary – that support the architecture of the justice system. These are filtered against six main themes – budgets, infrastructure, human resources, work-load, diversity, and ‘five-year trends’ – to assess where a state stands, not simply vis-à-vis others, but against the standards they have set for themselves.
Moreover, given that the justice sector has been largely inaccessible to reformative efforts driven by the public, unlike in the case of sectors such as education or health, the ranking of states is an effort aimed not only to propel states to improve themselves, but serves as an important base document: first, in providing a birds-eye view of the system, policymakers are encouraged to understand the correlations between the different sub-systems, and second in that the report allows for a deep-dive into system-specific data, to see where quick remedies can be implemented.
Set side by side the collation revealed the extent to which each individual sub-system is starved for budgets, human resources and infrastructure. There were, for instance, huge vacancies across all four pillars and in each state. On an average, the police have a vacancy of 23% (January 2017), prisons 33-38.5% (December 2016) and the judiciary between 20%-40% across the High Courts and lower judiciary (2016-17). These have more or less stagnated, mapped against the most recent data. The figures in some states are nothing less than alarming. While in 2017, in Uttar Pradesh’s police force, there was a shortfall of 63% among officers; in the Bihar and Madhya Pradesh of January 2020, 1 out of 2 police officer posts was vacant.
The data threw up proof of the distance between policy promises and practices. For instance, against a pledge to have 33% women, in its police forces in 2017, in thirty states and UTs, amongst officers, the share of women was less than 10%. In 2020, Tamil Nadu had increased this to 25% from 9%, with Himachal following at 20%. Interestingly, if recruitment rates remain the same as they did in 2017, data demonstrates that Maharashtra would take 14 years to reach 33% women in police while states like Madhya Pradesh and Chhattisgarh would take over 200 years.
This throws up massive gaps in equal access to justice services, otherwise not evident. Mapped in terms of police stations, the data demonstrates that rural India faces greater hurdles in reaching institutions of justice delivery than urban India. Many rural police stations in Bihar and Maharashtra for instance served populations three times larger than their urban counterparts; while serving areas roughly 10 times bigger. Conversely, in terms of average area coverage, rural police stations in Mizoram (about 854 sq km), service areas twice as large as some of the largest states such as Madhya Pradesh (nearly 641 sq km). There may indeed be reasons for such arrangements but highlighting such disparities invites a re-examination to see if traditional logic still holds against the right of every citizen to have equal access to the institutions of justice.
The report also unpacks persistent problems that erode the capacity of the system to deliver. Each subsystem for instance complains of being starved of funds. Financial inadequacy has a direct correlation to capacity enhancement and the maintenance of core competencies of the formal justice system. For instance, on average, no state or UT apart from Delhi spent even 1% of its budget on the judiciary. Nationally, India spends 0.08 %.4 In human resources, inadequate budgets imply increasing vacancies in future. In 2016-2017, 42% of judge posts in the High Courts were vacant, while in subordinate courts the vacancy was at 23%.
This problem of fund inadequacy exists along with an under utilization of funds. For instance, modernization grants from the Ministry of Home Affairs to states can only be used for infrastructure, capacity building, repair and maintenance, among others, and cannot be used for resolving much-needed manpower requirements. In 2016-17, only three states were able to utilize even 80% of their modernization fund. So, while there is money in fact available, the system is unable to plan, monitor budgets to overcome historic human resource shortages. This suggests that the need to streamline the processes by which funds are allocated, synchronise their disbursement to the capacity to absorb and hire.
The use of collated and disaggregated brought side by side therefore allows for identification of specific deficits which, if repaired, could remove bottlenecks to efficient functioning. Data, therefore, becomes a force multiplier to promote evidence-based policies which benefit their target audience.
All too often the possibility of rational planning is negatively impacted by irregular or delayed data collection and publication that does not align with fiscal, recruitment and planning cycles. States reporting on one thematic, say policing, also use different formats to gather the same information or collect it without reference to other sub-systems so they can’t be usefully analysed to understand their knock-on effects on other subsystems.
Both data collection agencies – the BPRD and the NCRB also often change the categories of data collected from year to year. For instance, while in 2017 the BPRD collected disaggregated data of women in civil and district armed reserve police, the following 2018 data consolidated all women personnel in one block category for district armed reserve police before disaggregating it once more for the most recent report. Similarly, prior to 2016, the NCRBs Crime in India, listed numerous categories of human rights violations by personnel and the stages at which they were: from how many complaints were received and registered, to the number of police persons charge sheeted, the departmental proceedings initiated, personnel arrested, sent up for trial, convicted and acquitted. Subsequent reports now only make mention of judicial action; all unhelpful in mapping patterns of abuse.
At the same time, the continuous datafication of society – the generation, collection, analysis and use of data – is the product of myriad actors and interests in society that shape how it is used and what needs to be datafied. This information becomes an extremely powerful tool in the hands of various stakeholders. It contains within it a broad spectrum of points about whole populations. While these can be studied to derive crucial findings that are socially meaningful, often this information is selectively put out/withheld, affecting the rights and remedies of individuals.
Take the collection of data on minority communities in the police. Data was collected and over fifteen years, from 1999-2013 it showed Muslim representation in the police remained consistently low, at 3-4% (including Jammu and Kashmir pushes it up to 8%), as against the 14.2% population that is Muslim. Inexplicably however, since 2013, the NCRB has ceased its reporting of the level of Muslim representation in the police. Since last year, the NCRB has also withheld data it had otherwise collected under the sub-heads mob lynching, murder by influential people and killing ordered by khap panchayats on grounds that it was ‘unreliable’.5
Enhanced efforts for capacity-building of stakeholders would enable them to use data effectively. This would also allow for increased civic engagement and participation, promoting transparency and accountability within systems. Linked to this is the need to ensure that concerned parties can access data effectively. This requires governments proactively disclose information (as provided for in Section IV of the RTI Act, 2005), allowing for data to be accessed easily and within a reasonable time period, from anywhere in the country. Improvements in transparency within the justice system can be enabled through the regular publication of verified and accurate data. Ensuring compliance with Section 4 of the Right to Information Act, 2005 with its obligations of proactive disclosure would go a long way in achieving this.
Supplementing this, state governments should also ensure the undertaking of periodic empirical research, to study different facets of the justice system. For instance, institutions of police oversight remain complied with only on paper; prison and judicial mechanisms remain hidden from public knowledge while legal aid ones are still in a nascent stage. It is only ensuring compliance with such practices that can help rekindle trust in the system and would help foster a culture of transparency and accountability.
Fulsome data can at best tell half a story and sometimes a misleading one. Recently, in order to deflect growing scrutiny on the safety of women in Uttar Pradesh, a narrative has emerged that Rajasthan is the worst-performing state when it comes to crimes against women – with the total rape cases registered amounting to 5,997 cases, followed by Uttar Pradesh with 3,065 cases. Drawing simplistic conclusions purely based on case numbers may be misleading, as there are a number of factors that play a deciding role – such as the willingness of authorities to take note of the crime and register a case; where higher numbers may point either to fewer barriers to reporting, a genuinely high incidence or both.
Reliable policy making and response to ills that beset the justice system requires data to be augmented by research into the cultures within the systems, its real life responses to the public and the perceptions and experience of the public. Kerala for instance, scored in the bottom percentile for the police ranking in the India Justice Report 2019, owing largely to vacancies at the officer level and share of women in the police. These figures, however, are unable to offer an accurate picture of the performance and perception of policing within the state. While filling vacancies, as Uttar Pradesh has done for its police in 2019-2020, would objectively increase its score and ranking in the report, one cannot say – particularly in light of recent events – that the latter’s police is better than Kerala’s.
The perception survey in the Status of Policing in India (2018) report illustrated that Kerala performed well on parameters such as positive police contact, satisfaction with the police and police autonomy. A combination of data and statistics combined with audits of how satisfied users are would be the answer to truly gauging justice delivery.
Data is the new oil. However, like all resources it needs to be used for the benefit of all and not for the accretion of power in the hands of the few. After all, it is a powerful tool to ensure that access to and delivery of justice gets actualized and doesn’t simply remain etched in paper as the first promise made in our Constitution.
3. ‘India Justice Report: Ranking States on Police, Judiciary, Prisons and Legal Aid’, Tata Trusts, New Delhi, India, 2019.