Judiciary Is Beacon Of Hope But Needs Reforms
An independent judiciary is key to several positive indicators.
Credibility of the judicial system is central to the sustainability of society. It is the guardian of fundamental rights. It powers democracy, fuels democratic participation, feeds equity, maintains civil order. Its functioning impacts the everyday life of the common citizen. An effective judiciary is empowering; key to happiness, equity, upward mobility, and inclusion.
The Indian judiciary is independent, impartial, and fair; yet weak, inefficient, and appallingly slow. People continue to suffer an ineffective, ineffectual, judicial process. The legal ecosystem (especially related to the delays) has hurt both litigants and society. It bruises most others. One gets the impression that the judiciary has failed our citizens, compromised the present and the future.
Apex judiciary most trusted, but trust in lower judiciary abysmally low and waning
It has contributed to the loss of faith in the judicial system.
A sound judiciary is vital to ensuring Rule of Law. It protects against the state itself, and often is the last resort of the aggrieved. India needs judicial reforms. It’s no secret. And yet not much has been done. That too is evident. Our policymaking is too fixated on ‘interests and institutions’, which serves as an inertia for any radical thinking or reforms.
Studies relating to the deliverance of justice provide insights. Data and analysis of trial length (duration to close), accessibility to judicial services i.e., ease (based on social condition), and expense (relative to income) to seek justice, doesn’t repose confidence. The judiciary, particularly in the lower courts, has largely failed to aid and empower citizens when they deal with law enforcing agencies.
A Crux study articulates a strong correlation between economic growth and a strong and effective judiciary. An efficient judiciary protects property rights, ensures enforcement of contracts. It sustains more developed, and effective financial and credit markets, that reflect in higher and healthier investment. It both attracts and rewards entrepreneurial play. An enabling judiciary is associated with more rapid and sustainable growth of smaller firms. It builds confidence in the larger firms to expand. The judiciary is key to economic competitiveness.
India has too many laws, many of them archaic, some even draconian. The policymakers need to address the issue of why litigation is on the rise (even when the litigants believe justice is ‘forever’ delayed), and what will lower the rate of appeals. A long-drawn proceeding is a major drag. The average length of ‘first instance’ proceedings are around three years, against a year in most developed countries. The final disposition of cases involves even a longer process, takes thrice as much time.
Swift justice is elusive. Disadvantaged suffer
There is worse. Settling disagreements takes about five years. Over two-thirds of the inmates await trial. About half of those locked up are in the prime of their life (18-30 years). Over 90 per cent are too vulnerable and disempowered to secure parole. Even those who have the means, pay the burden of the case, compound it with a great deal of time ‘in waiting’. There are close to four crore pending cases (admittedly a majority of them are trivial); doubling every eight years. At this rate, it will take 50 years for closures. As many as 70,000 cases are pending before the Supreme Court alone, some with a vintage of 50 years.
Most Indians file a case, knowing that the ‘next generation’ will benefit from the adjudication. Over 90 per cent of the litigants are ‘relieved’ if they can just get ‘heard’. Such is the despondency.
The judiciary has made some (not significant) progress in digitising. Electronic forms and registers, websites, and other digital interactive systems will be long term multipliers. They will lead to higher productivity (measured as cases solved, time taken etc.). Similarly, it will help lawyers ‘follow up’ cases online, to ultimately benefit the litigants. There is a pressing need for infrastructure investment in the entire judicial ecosystem, particularly in the lower courts. Not only is India short of judges, the shortage of judicial officers in the lower judiciary hurts the vulnerable even more. The judiciary needs to recruit, augment; and invest in capacity building.
Cost escalation and increasing lawyers’ fees is throwing most disadvantaged out of the ‘justice’ net. Laws are unequal. Most poor litigants suffer indifferent service. Policymakers need to monitor the expense and length of ‘justice’. And act to create a fair and inclusive judicial ecosystem.
Government, a compulsive litigant; is vindictive and a sore loser
The government is a ‘compulsive’, and the biggest litigant, accounting for a little less than half of the cases. Over a fifth of the cases have no financial implication and can be resolved ‘out of court’. Even the Prime Minister laments that the ‘judiciary spends its maximum time on us i.e., the government’. He must address this by bringing in administrative reforms.
The governments of the day, and earlier ones, have been trying to fix something that needs overhaul in most related areas, and radical reforms in others. Not much will be achieved without revamping the colonial-era CPC and reforming the police ecosystem. While the need of judicial reforms is evidently visible, the need for administrative and police reforms needs immediate attention too. Administrative reforms must run parallel to judicial reforms.
Most people believe that giving a larger say to the judges and courts will solve the problem. It won’t. The judicial system is in a heavy logjam, and yet courts continue wading into executive domains, even asserting authority. Judicial overreach and hyper-activism ‘blur’ the separation of democratic power. This is both a signal, and a reminder to the failure of the administrative ecosystem. It has bad consequences.
Justice delayed is justice denied
Most reforms are undertaken in a crisis. Extremity forces policymakers to rethink existing policy. It triggers action, and a willingness to experiment and embrace change.
There is no bigger crisis than now.
We need judicial reforms pivoted around an institutional framework that not only stimulates, but catalyses an enabling ecosystem that delivers justice to all. Independently and swiftly. However, it will need more than intent and will. The Prime Minister will have to draw on his political capital, summon his resolve.
Then he will need tons of luck.
