THE TORN CANVAS OF JUDICIAL DESIGN

The persistent issue of judicial pendency has reached "impossible to redeem" levels. The judiciary has attempted two strategies: exploring alternative dispute resolution methods and increasing the number of courts and judges, choosing either strategy depending on the jurisdiction. Both have failed to reduce pendency and have drained resources. A new strategy now involves incorporating technology.

These issues led me to examine the overall design of the Judicial System in India. Now for this discussion I am not bothered about the judicial system in other countries. Bharat is our Matrubhoomi and I live in India only. In this article I set out my understanding as to the current situation of the legal system in India from the perspective of judicial design.

What do I mean by the term "Judicial Design"? I do not impute any conspiratorial intent upon use of this term. I merely refer to the method by which the Judiciary has been constructed. No One can dispute that the Indian Judiciary was constructed by the British Empire. The British idea of Judiciary was two-fold - to push European (includes Islamic) Ideas of Social Polity onto Indians and to explore legal methods to disarm and disempower the Indian civilisational psyche and to ensure that crime does not impede the functioning of the British Empire In India. The Judiciary constructed by the British did not bother itself too much with the quantity of cases but focused upon setting down the law as regards pin-pointed issues. Statistics were important but never super-seded the surgical nature of the Judiciary. Hence, Settled Legal positions emerged more in number from the British Era. Anyone who has read the decisions of the Privy Council and the British Era Courts to would attest to this fact. The Historian Meenakshi Jain has also elaborated about the British Approach to The Judiciary in her book.

There was no need to submit mountains of precedents before the Trial courts to drive home a settled legal position. There were legal positions that were sacrosanct and can be reasonably expected not to be interfered with. The consequence of this was that no litigant needed to approach the higher courts for every legal position. There was no question of "lets take a chance before the Privy Council". Speak to any senior lawyer practicing from the 1940s and you will understand as to how surgical the state was then. This is precisely the reason why civil minded citizens today remark "There was more clarity in British Law then".

The Post Independence, any rational citizen in India would have expected a lesser Influence of the Judiciary on the nation's psyche. The reasonable expectation would be that the State will not interfere with the cultural expression of the citizens on the reasons that were set out by the Colonial Masters. The first four decades post-independence saw the rise of the Marxist Influenced Jurisprudence that favoured an over-arching control over the Indian psyche. Here we see the rise of Public Interest Litigations, concept of Basic Structure of Constitution and Judicial Review. Every student of law is taught that these are the features that evolved because of Evolution of Constitutional Law. However, there seems to a deeper reason.

A closer examination of the judiciary's operational patterns in contemporary India reveals a significant evolution. The judiciary, which once functioned as a precision surgical institution, meticulously dissecting legal issues with an eye for detail and specificity, has transformed into what can be described as a Statistical Ratification Organization of Response. This transformation implies that the judiciary now often responds to societal issues and legal challenges in a manner that reflects broader statistical trends rather than through a meticulous analysis of individual cases. The shift raises important questions about the role of the judiciary in shaping public policy and cultural norms, as well as its responsibility to uphold the rights and freedoms of citizens. The implications of this evolution are profound, as they suggest a judiciary that is not merely interpreting the law but is also actively engaged in the shaping of societal values and norms, sometimes in ways that may not align with the original intent of the constitutional framers. As we delve deeper into this complex interplay between the judiciary and the Indian societal landscape, it becomes increasingly clear that the judiciary's influence extends far beyond the courtroom. It permeates everyday life, affecting how citizens perceive their rights, their government, and the very fabric of Indian democracy. The judiciary's role in public discourse, its engagement with social justice issues, and its impact on cultural expression all underscore the paradox of a legal system that was designed to protect individual freedoms yet has, in many ways, become a vehicle for broader ideological control. In this light, the evolution of the judiciary post-independence serves as a crucial lens through which to understand the ongoing dynamics of power, governance, and civil society in India.

I recall the lessons imparted by My Senior to use the strategy of cud-chewing cow whenever studying a legal position or reading a piece of evidence for trial.

The Strategy involves reading fully through the texts and then allowing the mind to ponder over it freely. This lesson without a doubt comes from decades of legal training of My Senior in a pre-digital Pre-statistical judicial era. We can even say it is a product of the Colonial Era. However, this strategy is useless for most lawyers today because time is money. This Strategy is absolutely necessary for any judge, but it is no longer relevant because of the tight control over judicial reasoning of Trial Court Judges.

Psychologists recommend this strategy to increase performance and a vital aspect of a healthy mind. The Author Daniel Kahneman in his Book says Thinking Slow fires up the more powerful parts of the brain and reduces mental stress. An Experiment was conducted in Israel where it revealed that judges wrote better judgments after regular lunch breaks, particularly more acquittals! If we analyse why these are not implemented in India, it will be clear that the judiciary no longer needs every judge to Deep-Think. it only needs those at specific positions to do the Deep Thinking. I am not saying that judges do not think, I am referring to the process of "Thinking Slow".

The Judicial Design today requires Trial Court Judges to think fast - Too Fast In my Opinion. Multitasking is a quality that is being over-appreciated in Trial Court Judges. A Trial Judge with the mental capacity to switch between multiple jurisdictions, evidence and administrative work is required today. A Trial Judge with the capacity to deep think over analysis of evidence is not required.

The situation is no different for lawyers. Recently there was an observation on the judicial side of a High Court in India that said Senior Lawyers cannot be blamed if precedents that do not apply to the case in hand are cited.

The responsibility ought to fall on the engaging counsel. The only requirement of a senior lawyer is to Deep Think on the Questions of Law and leave the paraphernalia of paperwork and filings to engaging counsels. If the judiciary says don't expect seniors to Deep Think then what remains in the pot?

A Trial Court Lawyer, who is able to multi-task between different jurisdictions, high level of network skills is most appreciated and most sought for. In this century, A Trial Lawyer whose biggest strength is deep thinking on a single jurisdiction will most often be frustrated and will have to wait for "breakthrough".

Deep Thinkers will also be unable to spend enough energy on networking because they need the mental space and cannot waste it on building prospective networks.

I Personally advise every young person reading this to self-analyse and decide what set of skills they inherently have - deep thinking or fast thinking and take recourse accordingly. The Lincoln Lawyer Exists Only in Fiction.

Psychologists say that Deep Thinking is very vital for most human beings for the simple fact that Deep Thinking leads us to appreciate real life better and to steer away from instant gratification. Several books have been written on this subject. The ability to Deep think is also inherently connected with Boredom. The Dangers of Instant Gratification go deeper than mere anxiety issues, it affects the entire society in ways faster than we can imagine. More instant gratification leads to more frustration. Suffice to say there are more avenues for Instant Gratification in today's Digitally Invaded World. I will leave things at this for the readers to ponder further.

The Trend of Examinations for District Judiciary is that instead of testing lawyers with skills and psychology, they are tested like Candidates for Clerical Work. I recall reading a news item that many young people are opting for judicial careers because of the perks that comes with the job. The manner in which a judicial career is being marketed today is either that of Perks, prestige if the candidate comes from a downtrodden community and prestige for the family in the event of a suitable marital alliance. Now, I am not against any of these avenues, the fact that the skill set and the psychology of the candidates are being ignored with the principle of "More Courts More Judges" is the issue here.

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The recent judgments on judicial recruitment in the District Judiciary demonstrates that the Hon'ble Supreme Court is unwilling to let go of the "More Judges More Courts" Principle. There is no consciented movement towards Improving Quality of the Decision Making. It is not sufficient if a lone judgment shocks the conscience of the Higher Courts resulting in sending the District Judicial Officer to training at The Judicial Academy without addressing the real issue.

It may not be out of place to mention many lawyers and litigants who have encountered judges with terrible mental psychology that they take tangential views to settled legal positions resulting in much disruption. The 21st Century World is one that is hyper-connected consequently hyper-comparitive. It is not out of place to mention that Mental Health has become a movement in 21st Century yet the Judiciary does not do anything to remedy its tangential minds. A common person in India is not living in isolation. It does not require the mind of a juris doctor to figure out why the law in another country or state is different from that of mine. The days of Victorian England when "Gentlemen of House of Lords decided what the Englishman Would Do" is not only gone but dead and buried in England itself, Thus being so, why should those born in India patiently tolerate the oscillating decisions of "Gentlemen and Ladies" of the Judiciary? There will be demands for consistency in judicial decisions. There will be legitimate expectation of settled legal positions especially in matters of gender, identity and social life. Our Society cannot cross this century with judges regularly upsetting settled legal positions because of different individual approaches to legal positions.

I personally wonder why candidates who aspire to be judges are not made to undergo Psychological Evaluations. To test how a prospective candidate will treat a type of litigant or lawyer - rich well-dressed/shabby and in distress etc will shed light on the judgement making process inside that candidate's head. My Senior while researching for his book - Realities 45

asked many sitting and retired judges "When" they decide if a litigant/witness is guilty or not/deposing truth or not. Almost everyone gave very lengthy explanations that they decide only after analysing evidence hearing arguments. applying legal reasoning etc. My Senior however, surmised that it was obvious from the over-compensatory explanations that they make up their mind the moment they see the accused or complainant in person. However, The Judiciary as an institution does not want to credit this method. This mental process has been an invaluable tool for humanity's survival. This natural process of human judgment goes completely untested in Indian Judicial Selections. This Process cannot be replicated in any Video Conference as it requires the judge to see the litigant/witness in person. It would not be out of place to state that the mental process of judgment is the force behind judicial power itself and it is intricately connected to Deep Thinking.

The Star-Trek Warp Speed Style process to digitise both advocacy and judiciary throws yet another dangerous aspect of Judicial Design. Advocates cannot retire from the active profession. Judges have that option. Clerks working in the Judicial Offices have that option. The Digital Process that is being put on the legal profession today will result in mass exit of lawyers from active practice (atleast the subordinate judiciary) every 10 to 15 years simply for the fact that there will be too much of informational overload right from the initial stage and it will not reduce as the years of experience go by. If anything that the IT Industry has taught us is that, more experience requires more handling of digital systems leading to more burnouts. This IT Industry approach is not suitable to the judiciary at all which was designed like a surgical instrument and not a mass-production factory. The new generation will fry their neurons from switching constantly from reading lengthy text mode to moving from one online portal to another to conduct cases. Only those with an inherent capacity for handling high informational overloads will be able to just get by, that too slightly longer than the others for everyone is human only at the end of the day. Everybody from one Generation Will leave the Profession at Some point of time - forced retirement process of lawyers. There will be very minimum scope for increasing this capacity of handling informational overloads because we cannot change the design of the human brain (Atleast not in the near future) . One may argue that inducting subsidized Mental Health therapies for lawyers similar to Group Insurance and. Yoga Camps will minimise the effect. The answer is Yes and No. Yoga is only a band-aid and not a solution to Informational Overload. I am not saying this to discourage any young lawyer from taking up the profession. I agree that exceptionally capable persons do exist, but consider this simply as musings of another over-thinking lawyer! The better way would be for the judiciary to draw a line where digitisation ends and actual advocacy begins. There is absolutely No Need to put a Screen at every step of the judicial infrastructure.

My observation on the evolution of "clinching pieces of evidence" in any trial has been that, initially the word of the witnesses had more merit - unimpeachable oral testimony. Later it became affidavits and documents - requiring skilled drafting of language. Now, it has become photographs and video footages especially CCTV. An analysis of Video Forensics is outside the scope of this article, suffice to say CCTV footages are not designed to be pieces of evidence. It is meant for surveillance and we humans have to put the footwork using the footage to unearth evidence. Merely giving higher weightage to video or photographs is a dangerous strategy. The video camera is designed with entertainment in Mind. It is meant to be scripted.

A Senior Lawyer known to me argued that "Science Will Not Lie", I replied that Science can be "manipulated" to create Lies.

It is no longer an impossibility where persons can enact an offence through threats and record it on video and simply because it is captured on video it will become evidence of the offence having taken place. No Human will be able to find out the truth unless they have the capacity to analyse and deep think.

If today's social media influencers become officials and judges they will apply their directorial skills to creating evidence through enacted video footages. They would have had plenty of training in their earlier years. There is no guarantee that they will not think like this unless they are psychologically profiled at the entering stage itself. Persons can develop Skills that can cause social damage and will be revealed only when they are mixed with Power and Social Functions at Adulthood. Skills learnt during the young age become weapons in adulthood.

There was great emphasis on mediation and negotiation skills during the late 1990s and 2000s when Alternate Dispute Resolution Methods became a legal trend. The Judiciary jumped on this bandwagon without deep thinking as a quick fix for reduding pendency. Of course is responsible for amicable settlement of many disputes because quick fixes do give benefits in the short term. The Dark Side is the rise of the negotiating for judgments and kangaroo-courts as a "Culture" in the Legal Profession. There are instances where lawyers and judges have made alliances with Organised Crime Syndicates, Gangs and Cartels - through money, Fratricidal relations, even marriage too to achieve an over-arching control over a particular area of dispute resolution. Those persons who developed good negotiating skills form part of these cartels today. It will be a similar and worse situation when social media influencer lawyers skilled at creating photo and video narratives become judges and power-broker advocates tomorrow.

The Legal Profession is gradually changing from A Force of Social Change to Forced Change of Social Trends. I find It impossible to understand the role of a Legal Influencer. Such a person is more of an abettor to increasing the burden of cases on the judiciary and the country's resources. An influencer is responsible for marketing a particular Product or a Service to the public in order to increase the business of that product or service. A Business results in flow of resources in all directions. A Legal influencer only ensures flow of resources in only one direction - More Cases and More Expenses for the public. If the argument is that legal Influencers promote legal education then does that mean that society requires the Law to be "marketed" to target audiences? If such an argument is accepted then it proves the goal of this article - the design of the judiciary is no longer for social welfare but for making due process of law a business. In short Legal Influencers of Social Media are like Pied Pipers who lead everybody to their doom - Judiciary, Lawyers and Public alike.

It is high time the Judiciary understands that Quick Fixes will solve some problems in the short term but create bigger problems in the long term.

The current trend of Judicial Design only results in a situation similar to the military proverb - War is old men talking and young men dying. The strategy of More Judges More Courts is failing. The Strategy of Selecting Judges First Like Clerks and then training them without psychological understanding is also failing. The Obstinacy of the Judiciary not to allow Deep Thinking and Surgical Approach of Judicial Reasoning particularly in the grass roots is creating chaos and havoc in society. Social Havoc and Chaos have far reaching consequences in the 21st Century. A Better Judiciary is one where Legal Solutions come from the grassroots and not the "Gentlemen of the House of Lords" approach of Victorian Britain. Such solutions will reflect the aspirations of the citizens who depend upon this country for their lives and ensure peace in the society. To do that, Deep Thinking in the grassroot judiciary is vital rather than creating Fast Thinkers habituated into an army of Judicial-Armed Clerks commanded by Deep Thinking Lordships of The Empire.