Bibek Debroy on loopholes in the CPC

That’s the Civil Procedure Code.

The average person will not have heard of Dipali Biswas or Nirmalendu Mukherjee and may not be aware of the case decided by the Supreme Court on October 5, 2021. The case was decided by a division bench, consisting of Hemant Gupta and V Ramasubramanian and the judgment was authored by Justice V Ramasubramanian. Justice Ramasubramanian observed (not part of the judgment), “Not to be put off by repeated failures, the appellants herein, like the tireless Vikramaditya, who made repeated attempts to capture Betal, started the present round and hopefully the final round.” Other than smiling about a case that took 50 years to be resolved and making wisecracks about “tareekh pe tareekh”, shouldn’t we be concerned about rules and procedures (all in the name of natural justice) that permit a travesty of justice?

I know (alas) next to nothing about the law, but there were two excerpts in this article that I wanted to highlight as a student of statistics and economics. We’ll go with statistics first.

Whenever I start to teach a new course, I always tell my students that there are two kinds of errors I can make. I can either make sure that I complete the syllabus, irrespective of whether everybody has understood it or not. Or I can make sure that everybody has understood whatever I have taught, irrespective of whether the syllabus is completed or not. Speed versus thoroughness, if you will – and both cannot be optimized for at the same time. If you’re wondering, I prefer to err on the side of making sure everybody has understood, even if it comes at the cost of an incomplete syllabus.

This is, of course, closely related to formulating the null hypothesis and asking which type of error one would rather avoid. And the reason I bring it up, is because of this exceprt:

Innumerable judgments have quoted the maxim, “justice hurried is justice buried”. By the same token, justice tarried is also justice buried and inordinate delays mean the legal system doesn’t provide adequate deterrence to mala fide action. In my view, for most civil cases, the moment issues are framed, one can predict the outcome within a range, with a reasonable degree of certainty. (Obviously, I don’t mean constitutional cases before the Supreme Court.) With no disrespect to the legal system, I think AI (artificial intelligence) is capable of delivering judgments in such cases, freeing court time for non-trivial cases.

“Justice hurried is justice buried” and “Justice tarried is justice buried” are both problems, and optimizing for one means not optimizing for the other. What Bibek Debroy is saying here is that what we have ended up choosing to optimize for the former. We make sure that every case has the opportunity to be heard at great length, and with sufficient maneuvering room for both parties.

And that’s great, but the opportunity cost is the fact that sometimes judgments can take over fifty years (and counting!).

And what is Bibek Debroy’s solution? When he suggests that AI is capable of delivering judgments in such cases, he is not saying that the AI will give a perfect judgment every time. He is not even saying that one should use AI (I think the point is rhetorical, although of course I could be wrong). He is saying that the gains in efficiency are worth the occasional case being incorrectly judged. In other words, he is optimizing for justice tarried is also justice buried – he would rather avoid the error of taking up too much time for each case, and would (presumably) be fine paying the price of having the occasional case being misjudged.

It is up to you to agree or disagree with him, or with me when it comes to how I conduct classes. But all of us should be cognizant of the opportunity costs when we decide which error we’d rather avoid!

And economics second:

Litigants and lawyers (at least on one side of a civil case) have no incentive to finish a case fast (Does the judiciary have it?).

This is more of a question (or rumination) on my part – what are the incentives of the judiciary? I can imagine scenarios in which those “on one side of a civil case” can use both official rules and underhanded stratagems to delay the eventual judgment. And since there is no incentivization in terms of speedier resolutions, are we just left with a system that is geared towards moving along ponderously forever more?

And if so, how might this be changed for the better? This is, and I’m not joking, (more than) a trillion dollar question.

And finally, as a bonus, culture:

My friend Murali Neelakantan makes the point here that isn’t really about incentive design at all, that the problem is more rooted in how we, the people of India, use and abuse the provisions of the CPC.

That takes me into even deeper and ever more unfamiliar waters, so I shall think more about this before trying to write about it!

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