Thursday, August 09, 2012

On the Indian Judicial System

“Why has Indian Judicial System been such a huge failure? How can we improve our Judicial System? After all, Justice Delayed is Justice Denied”

The topic in itself deals with two different issues under the umbrella of the proverb of “Justice delayed is justice denied.” If you were to go on the streets of India and ask people for their opinions on whether the judicial system has failed the country, almost 100% would agree. Not many have a positive interaction and “good” people never want to get mixed up in these sort of matters.

When one starts to examine why the Indian Judicial System has been such a failure, one has to look at what makes a good judicial system. One cannot definitely say that a system has failed, if we cannot define a system that works. An effective judicial system is one that is approachable, is speedy, is fair and most of all is just. Is the Indian system any of these, if not all? Most often the answer will be no. No doubt there are isolated cases where justice does triumph and the guilty, punished.

The reasons for the failure are dime a dozen and everyone has its own reasons. For me, I see exactly 2 reasons –
  • Apathy
  • Greed.

Apathy is the root cause of all problems that plagues our country. When it comes to the Judicial system, apathy is all around. It has now become a vicious cycle. People don’t trust the judicial system and the judicial system doesn’t care about the people.

A common man doesn’t want to be involved in the procedures of the court even though he might be a victim. Why? It starts with the fact that the victim in our judicial system has not many rights. There is no victim impact report. In fact that crime is thought to be committed against society and not against a person. A victim is not but PW1 or public witness 1. There is no place for the rehabilitation of a person who could have been affected. Restitution is a joke and used interchangeably with compensation. Approaching the court is like driving on a pot hole ridden road when the destination isn’t desirable.

This predicament of the victim becomes worse when the crime committed is that of rape. The questions asked demoralizes her and one often wonders who the culprit is.

Isn’t it apathy on part of the public, on part of the judges and the entire judicial system that we did not have a proper conclusion on the Bhopal Gas Tragedy for more than 20 years after the incident? It was probably only the media attention that got justice to the Jessica Lal murder case. These cases are mere examples of how badly things can go wrong within the Judicial System.

Greed is the second common reason for the failure of the judicial system and with greed comes corruption. In terms of corruption, the judicial system stands second only the police which is the other part of the Criminal justice system. 62% people agreed to have bribed an official of the judiciary. These bribes are paid so that cases are deferred; the guilty are let off on bail. It wouldn’t be much of an exaggeration that our judicial system is corrupt from top to bottom.

There are certain things that can be done, however, to ensure that the judicial system works as a well oiled machine that delivers justice in a humane fashion. Solutions almost always require the problems to be broken down into manageable, smaller, practical issues that can be solved individually or collectively. I am going to use that approach while looking at how we can fix the Indian Judicial System.

First, the judiciary is overcrowded and the judges are a few. This creates the issue of cases dragging on forever.  As Nani Palkhiwala observed once, the progress of a civil suit in our courts of law is the closest thing to eternity we can experience. In almost all states of India, we can see local goons using strong arm tactics to settle cases in extra judicial ways. This creates a criminal nexus which defeats the very purpose of having a judicial system. As Gladstone observed, the proper function of a government is to make it easy for the people to do good and difficult for them to do evil. The only sanction to ensure good conduct and to prevent bad behavior in society is swift punishment. This is because our laws are archaic and full of loopholes. We need better, modern and efficient laws. We need more lawyers and more judges. We need more courts and more benches. We should have fast track courts for specific type of cases.

The higher courts have taken on themselves too much, making it impossible for them to be able to render justice speedily and efficiently. The writ jurisdiction became pervasive and everything under the sun is somehow made a subject matter of the writ. For instance, the transfer of an employee in a public sector undertaking has become a matter of writ jurisdiction by very involved and dubious logic. Such absurdities undermined the authority of judiciary and caused enormous damage to public interest. To take another instance, the courts have time and again ruled that cooperatives are public institutions, and are creatures of state, whereas in fact cooperative theory and practice throughout the world clearly envisage that a cooperative is a collective private body, created to further the economic interests of the members in accordance with the principles of cooperation. This mind-set that state could intervene everywhere, and that such intervention by definition is good, ensured that the people’s institutions could not flourish in an atmosphere of freedom, self-governance and autonomy. At the same time, state’s power even to control its own employees and enforce discipline has been severely eroded. As a net result, the judicial process only helped to accelerate the decline in governance. A stronger state with stronger controls is what is essential. There needs to be a division of power in its truest form.

Local courts, village panchayats withered away because they were not maintained. What remained were the Khaps that give judgments that are detrimental to society. The hierarchy was supposed to look like a pyramid with Supreme Court as the apex. The Supreme Court, which was originally designed to consist of a chief justice and not more than 7 other judges has now been expanded to a total strength of 26.  The high courts have even larger numbers of judges. The Andhra Pradesh High Court for instance has 39 judges! All these hundreds of high court judges in effect sit as constitutional courts every day with the power of interpreting the Constitution, and quashing laws on the ground that they are unconstitutional. The need of the hour is a local system that recognizes and understands the Constitution of India, along with the local norms and traditions. When the world is obsessed and discussing restorative justice, we have been practicing it for centuries and have let it die. We need to revive it and embody it within the Indian Judicial system.

Easier judicial procedures, approachable courts, better lawyers, efficient laws is what will make our Judicial system stronger. If these challenges are not recognised immediately and if far reaching judicial reforms are not initiated with a great sense of urgency and devotion, the judiciary may also fall in public esteem endangering the whole civil society and adversely affecting the public good. The judiciary should recognise that it is an organ of state with the sole objective of serving the public in a fair, efficient and accountable manner. Its loyalty should only be for public good and speedy justice and not to the convenience of advocates or politicians or bureaucrats. We have been singularly fortunate that several outstanding judges over the decades have ensured that judiciary can function in an independent and fearless manner. The time has now come when concerted efforts should be made to make judiciary efficient and effective without usurping the functions of the other organs of state.

While we concentrate on Justice delayed is justice denied, we should also remember that justice hurried is justice buried. What needs to be the focus is law taking its own course in the most efficient manner possible. 

Word count : 1387

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