Judiciary as a Bureaucratic Organisation and Its Public Value

Introduction

Target 16.3 of the United Nations Sustainable Development Goals aims to ‘ensure equal access to justice for all’ by 2030. However, with less than a decade to go, the target seems untenable, to say the least. An assessment by the World Justice Project (2019) shows that approximately 5.1 billion people in the world experience a ‘justice gap’. A justice gap is where at least one of the following justice needs are unmet: people who cannot obtain justice for everyday civil, administrative or criminal justice problems, people who are excluded from the opportunities the law provides, and people who live in extreme conditions of injustice.

If two-thirds of the world’s population has unmet justice needs, the case of the second-largest populous country in the world warrants an examination. The India Justice Report (Tata Trusts, 2021) ranks 25 states across four pillars of justice—judiciary, police, prisons and legal aid. The findings of the Report include: Judicial vacancies persist horizontally and vertically (9%–42%), a disproportionately high percentage (nearly 70%) of the prison population is undertrial, an accelerating accumulation of cases both in higher and lower judiciary, the shortfall of medical staff in prison has increased from 2016 (6%) to 2020 (41%), and courts, police stations and legal aid institutions are situated in urban areas; hence, the overall access to institutions of justice remains skewed against rural populations.

The ground reality of all these estimations is severe. Undertrials languishing in the jails for periods longer than the imprisonment prescribed for the offences they are charged under, criminals accused out on bail, infringement of fundamental rights, vulnerable groups unable to muster the economic, physical and psychological capacity to continue the case, witnesses turning hostile, repeated offences, loss of crucial records, stayed infrastructure projects and declining quality of judgements—to name a few. The Economic Survey 2018–2019 notes that delays in contract enforcement and dispute resolution are arguably the single biggest hurdle to Ease of Doing Business ¹ in India and GDP growth.

For decades, several recommendations have been given by different bodies to address the afore-stated issues. These include:

Increasing judiciary’s strength: The Eleventh Law Commission Report (1987) recommended that judicial strength should be raised to (at least) 107 per million of the population by 2000. (In 2020, this number was approximately 21 judges per million!) ² The Economic Survey 2018–2019 recommends the addition of 2,700 judges in the lower judiciary.

Why is it, then, that despite decades of judicial reforms, India still has such high levels of unmet justice needs? This paper argues that all these solutions look at judiciary from the standpoint of its most visible dimension—judges and their decision-making, rather than the administrative machinery which facilitates this.

Whither Judicial Administration?

Post the neoliberal reform agenda, there have been three shifts in the discourse of public administration. First, the conceptual framework of traditional public administration with its Wilsonian dichotomic roots (Wilson, 1987) and Weberian legal–rational branches paved the way to new public management (Osborne & Gaebler, 1993). Second, the literature of public sector reforms shifted from governance to good governance to networked governance and now to new governance. Third, the role of the public evolved from being treated as beneficiaries, then consumers and, finally, as citizens (stakeholders).

However, these shifts have been primarily the locus and focus of the Executive and Legislative branches of the government. After public policy emerged as a distinct field of study, public administration reforms have encompassed ‘law-making’ and ‘law executing’ dimensions of the State. The third branch, the ‘law legitimising’ branch—the judiciary—is sidelined in the literature of administrative reforms.

The most telling aspect of this is that both the Administrative Reforms Commissions in India do not have a dedicated chapter on judicial administration, although judicial reforms are peppered throughout the report under chapters such as ‘Good Governance’, ‘Ethics in Governance’, ‘Right to Information’, ‘Public Order’, to name a few.

This oversight is not inexplicable. The word ‘administration’ has traditionally been associated with government administration. When Wilson (1987) distinguished between the ‘what’ and ‘how’ of government, he was referring to the separation of powers only between the legislature and the executive.

Even the Constitution of India under Article 12, while including the legislature and executive, does not include judiciary. Since fundamental rights can be enforced only vis-à-vis the State, jurists such as H. M. Seervai and V. N. Shukla opine that only as far as its rule-making power is concerned, the judiciary is a State. The same has been upheld in N.S. Mirajkar v. State of Maharashtra. ⁶

In light of the above, it is submitted that unless we understand the ‘State’ within the judiciary and treat the judiciary as much as a bureaucratic organisation, all the reforms such as filling up judicial vacancies, setting up more courts and newer laws will yield limited results. This is because the problems of low-Case-Clearance Ratios (CCR), pendency and inefficiency are bureaucratic/administrative in nature.

To do so, I draw from Moore’s (1995) Public Value theory (PVT) and Gerth and Wright Mills (1948) bureaucratic theory to view judiciary as a ‘public bureaucratic organization’ and judges and administrative staff as ‘public managers’.

Public Value Theory: Conceptual Framework and the Literature Gap

PVT (Moore, 1995) came at an opportune juncture in the evolution of the discipline of public administration. Traditional public administration was paving the way for new public management and the principles of the private sector were sought to be imported into the public sector. Yet, the ecology of the State administration meant that these principles could not be applied to public sector organisations in toto. PVT resolved this dilemma by introducing the notion of ‘public value’, thereby enabling public managers to reconcile principles of neoliberalism with normative demands of State administration. This is because, as Moore recognises, public management is a technical as well as normative enterprise.

Moore (1995) states that just as the aim of managerial work in the private sector is to create private value, the aim of managerial work in the public sector is to create public value. Public value represents the collective aspirations of the citizens—their normative consensus about (i) the rights, benefits and prerogatives to which citizens should (and should not) be entitled to; (ii) the obligations of citizens to society, the state and to one another, and (iii) the principles on which governments and policies should be based. Simply put, therefore, public value is the combined view of the public about what they regard as valuable (Talbot, 2011).

Moore, then, posits a strategy for public organisations to create public value. This is the strategic triangle which gives three broad tests. A public organisation must ask itself three questions:

Is it aimed at creating something substantively valuable?

Since its inception, PVT has been intensely scrutinised by scholars and practitioners alike (Bozeman, 2002; Fukumoto & Bozeman, 2018; Rosenbloom, 2017; Stoker, 2006). The literature has encompassed questions such as origins, hierarchy, identification, categorisation of and conflicts in public values (Bryson et al., 2014 Jorgensen & Bozeman, 2007; Kernaghan, 2003; Rutgers, 2008). The theory has been empirically applied to understand value conflicts and coping mechanisms (de Graaf et al., 2016), in understanding organisational managerial controls (Spano, 2009) and in local government applications (Gains & Stoker, 2009). The theory has been utilised to evaluate the success of e-government policies (Castelnovo & Simonetta, 2008; Cook & Harrison, 2015; Scott et al., 2016) and in understanding sociopolitical impacts of ICT (Pang et al., 2014).

PVT has also been criticised for striking at the Wilsonian dichotomy and perpetuating bureaucratic self-interest (Rhodes & Wanna, 2007). PVT application has been questioned in developing countries since the skills it expects of civil servants are in short supply (Samaratunge & Wijewardena, 2009).

However, the loci and foci for all these analyses have been primarily the Executive or Legislative arms of the State. There is little emphasis on the judiciary from the standpoint of PVT. Moore (1995) does in fact refer to judges as public managers in their capacity as an oversight authority. He calls them as the less obvious and not so direct in the line of authority. It is these, non-obvious public managers, whose decisions impact the performance of the obvious public managers.

Yet, there is no further deliberation on judges and the judiciary in his or other subsequent works to understand judiciary as a public organisation and its public managers. Thus, there is a gap in terms of looking at the judiciary in the context of PVT.

The discussion that follows attempts to establish the judiciary as a bureaucratic organisation, just as much as the other government departments, and identify the ‘publicness’ of this organisation.

Judiciary as a Bureaucratic Organisation

Gerth and Wright Mills (1948) bureaucracy is an ideal, legal–rational authority, distinguished from traditional and charismatic authorities and which does government work with maximum efficiency, effectiveness and economy (Waters & Waters, 2015). Bureaucracy is characterised by hierarchy, division of labour, chain of command, rule-based decision-making, secrecy, merit-based recruitment and promotion. Additionally, Fayol (1949) and Gulick and Urwick (1937) have propounded the characteristics of a classical organisation as follows. If we apply all these characteristics to the judiciary, a bureaucratic organisation emerges. To illustrate:

Legal–Rational Authority: Judiciary is not a traditional or charismatic authority but a creature of law. The Constitution of India is the grundnorm which creates the Supreme Court of India, High Courts and the subordinate courts. The Codes of Civil and Criminal Procedures give detailed rules regarding processes to be followed in courts. Every state has its rules and High Court manuals to guide the functioning of courts. Finally, the judges, lawyers and administrative staff are all governed by various statutes and rules of the Central and state governments. Nobody can be appointed or dismissed without due process and due procedure of law. In other words, the judicial organisation is created, maintained and modified by law.

The appointments of the vast majority of the other participants in the judicial system are also merit-based. The court staff, police, protection officers and lawyers are entrants through legal processes, including exams and interviews. A glance at the recruitment link on the Supreme Court’s website testifies to the rule-based nature of appointments (meritocracy). Even for the post of a chauffeur there is a ‘mechanical skill-based test’. ⁸

The ensuing discussion attempts to show that judiciary is a bureaucratic organisation evidencing legal rationality, division of labour, hierarchy and meritocracy. This is why unless one addresses the problems plaguing the administrative side of this organisation, any reforms such as increasing the number of courts or judges, are only going to give the illusion of change without a commensurate increase in the economy and efficiency of this institution. In fact, with respect to increasing the number of judges, Meyer (1983) points out: ‘Increasing the number of judges almost invariably generates an increase in the work of the courts of close to the same magnitude that the new judges, working under such a restriction, can accomplish.’

Judiciary as a ‘Public’ Organisation and Its ‘Public Managers’

The earlier discussion has attempted to demonstrate that judiciary is a bureaucratic organisation. The next question is: Can one view it as a ‘public organisation’?

The word ‘public’ organisation can be construed either as a term synonymous with the government, in terms of the public nature of functions it performs, or in terms of the spheres (public or private) it operates. Judiciary undoubtedly satisfies the latter two through its justice delivery mechanism. In fact, in a diverse, democratic and welfare state such as India, the judiciary’s responsibility is higher. The courts are deeply involved in matters of social policy and hence they have to function not only as judgement-dispensing organisations but also value-creating ones.

Value, as Moore says, is rooted in the desires and perceptions of individuals. What is the value desired by the public from a judicial organisation? Prima facie, the three Es of public administration apply to judicial bureaucracies also—efficiency, economy and effectiveness. However, they take a different turn due to the specific context in which judiciary operates. Efficiency in judiciary is not just about the optimum utilisation of resources to increase the CCR or decrease the pendency but rather ensuring equitable, transparent, accountable processes and well-reasoned orders. In other words, technical efficiency may not translate into factual efficiency in a judicial system. An example is the E-court Mission Mode project where an analysis done from the data available on the National Judicial Data Grid, for the period 2006–2019 (the period of the first two phases of the E-courts project) shows that pendency has in fact increased, despite a higher disposal rate (Sinha, 2019). Finally, judiciary’s value is not just limited to its current context but it also has a ‘capital value’ (Moore, 1995) rooted in both—its ability to adapt and to produce new things potentially valuable to the society.

The author argues that the judiciary is a unique public organisation because its output itself is a value—‘justice’. Justice is the qualitative dimension underlying a judgement. Justice transcends right or wrong; it sets the moral compass for the public and the State to observe. Judiciary ensures socio-economic and political justice. That is the service that this organisation delivers and it is this which sets it apart from other public organisations because it values the value of other public organisations. This is why judicial organisation is one of the most, if not the most, important public organisations in the society.

Naturally, then, judges act as public managers in their capacity as an oversight authority. In ‘Creating Public Value’, Moore (1995) says that in cases where public managers have violated individual rights in schools, mental hospitals, prisons or housing authorities, judges have become directly involved in managing them. The strategic triangle gives an excellent strategy for doing this. Every judge while doing her work should ask herself if it is resulting in justice creation and whether it can be sustained. If yes, the next question is how to make justice operationally and administratively feasible.

It is here that the other public managers in the judiciary emerge. People do not interact only with judges; in fact a litigant’s interaction is less with the judge than with the court staff. From the filing clerk to the bench clerk, from the registrar to the bailiff, every individual is involved in justice dispensation and thereby value creation. It is these public managers involved in the vast bureaucracy of and connected with judiciary which must be trained to do value management.

The Challenges to Value Management by the Judiciary

However, all this is easier said than done. There are several issues which impede the functioning of judiciary as a public organisation.

First, the legislature has created several new categories of offences and laws without concomitant increase in judicial resources. The Eleventh Law Commission Report (1987) on Manpower Planning in Judiciary: A Blueprint raises a very important question—‘Does the Justice Department keep in mind proportional increase in workload of judges and thereby increasing judiciary’s strength, while introducing newer offences?’ However, even here, it is relevant to note that the Law Commission speaks only with respect to increasing the strength on the judicial side without any attempt to reform and strengthen the administrative side of the judiciary which is bound to be burdened with a huge workload when new offences generate newer procedures and increased filings.

Second, while judicial appointments are always a focus area of news, the recruitment of the vast machinery of court officers including bench clerks, stenographers, typists and assistants is done as a matter of routine. The Supreme Court of India, as of December 2022, had 2,148 officials employed in various capacities. ⁹ If one adds to this the staff working in the High Courts and subordinate judiciary, the number will reach lakhs. How is this manpower planning and recruitment done? Is there any scientific management (Taylor, 2016) or any other principle being followed in the training and assignment of work of the non-judicial side? Has a comprehensive study been done as regards the duplication of work, redundant posts, uneconomic and inefficient procedures? Finally, has any behavioural study been undertaken as regards the formal and informal systems of court work (Mayo, 2003)?

The answer to all these questions is regrettably negative. The Eleventh Law Commission Report (1987) notes that the science of manpower planning has not attracted policymakers. This is now compounded with the introduction of E-courts. The challenges of E-courts are not only technical literacy but also behavioural apathy to change.

Third, a judge’s work is not done just on the bench but off it too. Interestingly, even in the United States, it has been reported that federal judges spend only 40 to 60 days a year on the bench. The rest of their work is in chambers—studying briefs, writing opinions and doing myriad other judicial tasks (Rubin, 1980). Each judge is also expected to be an administrator, manager and supervisor. She is guided in this regard by the Constitution, State Acts, High Court Manuals and Rules of Procedures. However, all these regulations have not been updated to the ethos of new public management, resulting in archaic, duplicate, irrelevant and time-consuming procedures. This results in delegation, dilution of oversight function, excessive discretion, unscientific management of courtrooms and most importantly, qualitatively reducing the time required for a hearing and judgement-writing. All of this directly impacts justice dispensation.

Fourth, despite substantial devolutions from Finance Commissions to the judiciary, funds remain underutilised. The India Justice Report (2020) notes that only 20% of the 13th Finance Commission funds were used by the judiciary. The reasons for this are again rooted in bureaucratic decision-making. India follows line-item budgeting, where similar expense-incurring activities are clustered to give an idea of what are the demands of an organisation. However, this is a status quoist method and does not involve long-term financial planning. Judges and registry staff are not trained finance specialists, and thus budgets are not prepared or executed with much foresight other than the line-item requirements. This not only results in inefficient and uneconomic spending but also impacts several sectors which could do with flow of funds, more notably lower court infrastructures.

Finally, there is little focus on the court infrastructure itself. Today, most subordinate courts are on rented premises. Maintenance of these courtrooms suffers because the public works department, the landlord and the District Judge have other priorities than court upkeep and upgradation. This results in a poor workplace with basic infrastructure missing. Herzberg’s (1966) Hygiene Factors showed that the workplace environment impacts work productivity. If judges are made to work in small and dark courtrooms, without proper water and washroom facilities, their decision-making is bound to be affected. They are more prone to grant adjournments—a behavioural issue.

These are some of the bureaucratic issues in judiciary which need focus from policymakers. They defeat the very purpose of judicial reforms. When judgements are written poorly, the losing litigant suffers because he may not understand the reason for the judgement or may be unable to demonstrate a basis for review. The law deteriorates because developing legal principles become muddied which produces instability and necessitates the wasteful expenditure of additional judicial time, and the public is disserved because its future actions will be confused by the uncertainty an insufficiently articulated principle generates.

Concluding Remarks

There is no one solution to the problems plaguing the judicial system in India. Neither have all reforms been unsuccessful. However, it is essential to realign our focus on the judiciary as a public sector organisation with private sector principles of functioning. For this, the focus of administrative reforms should be not only on judges and their decision-making but on every element in the judicial system.

First, this will mean relieving judges of their other duties as regards court administration, budgeting, manpower planning and policy execution. They can, then, dedicate their time and resources to writing well-reasoned judgements, allocate sufficient time for hearings, frowning on adjournment culture, shedding off behavioural apathy towards technological deployment, engaging with policymakers to develop procedures which are cost-effective, relevant and litigant-centric, and most importantly, innovative and experimental.

Second, as regards manpower planning and execution, legislatures and governments need to develop a policy framework that first carries out an extensive scientific analysis of the personnel and skill sets required at each tier and across tiers in the judiciary. Third, extreme hierarchical and multi-court systems can be revised and fewer points of entry should be considered. There is no point in multiplying forums of judicial settlement if there is no perceivable cost–benefit ratio. It will be simpler and more efficient for a litigant to have a single-point entry system regardless of the nature of the case. Fourth, as public managers, judges can explore options such as encouraging plea bargaining and create more transparent, responsive and inclusive courtrooms. How can judges be public managers can be gleaned from a beautiful paragraph written by Justice Clark:

Judicial independence, of course, has its corollary of judicial responsibility. The judges must be of the stuff that goes to make a good judiciary. What is this stuff of which I speak? Legal knowledge? Yes, and of sufficient quality to be able to determine the applicable rule of law in a given case together with the wisdom to apply it with clarity and dispatch. Ability to discover the facts? Yes, and an open mind to recognize the truth and separate it from the chaff. A firm but understanding heart? Yes, and the courage to declare a just decision and enforce it. Integrity? Yes, above all other attributes; and a public and private deportment that is above reproach. A conscience? Yes, but rather than being one that breeds fear and negative action it must be a conscience which at the close of each day’s work may whisper softly: “Today you were truly worthy to wear the robe and enjoy the appellation of judge.” (Clark, 1970)

Finally, in broad organisational terms, a justice system can include not only courts and tribunals but all formal and informal institutions that address breaches of law and facilitate peaceful contests over rights and obligations spanning all three branches of government and multiple non-state actors—police, prosecutors, public defenders, state and civil society legal aid providers, alternative dispute resolution providers, administrative adjudication and enforcement mechanisms, customary and community-based institutions, anticorruption and human rights commissions, ombuds offices, and property and commercial registries. (The World Bank, 2012)

In this context, the PVT is an approach which balances management techniques with the ‘public’ nature of bureaucratic organisations. Its deployment in understanding judicial organisations can be a practical approach to addressing long-standing issues in judiciary. However, much work remains to be done on the application of PVT to judiciary. In this paper, the author has examined the possibilities to do so. Further research should focus on the following questions: How can we identify and determine the public value of judiciary? The E-courts project is now in its final stage. In this context, how can one determine the public value of e-judiciary? How can the bureaucratic staff in the judiciary be trained to manage public value? Are public values prismatic? (Riggs, 1961). Nabatchi (2012) notes the ‘temporal’ character of public values and says that ultimately administrators have to make a complex trade-off. However, there is little research on how this is to be achieved in an environment exhibiting degrees of heterogeneity, formalism and overlap.

The answer to these questions may well provide a hitherto unexplored perspective to tackle the justice gap of almost 18% of the world’s population.