Inefficiency, out of court

Poor governance is adding to judiciary’s woes

The large number of vacancies in the appointment of judges is a wellknown systemic weakness of the Indian judicial system. Less acknowledged is the leading contributory role that governments at the Centre and states play in compounding the problem. That was the blunt analysis by Chief Justice of India N V Ramana addressing the joint conference of the chief ministers and chief justices of the high courts at New Delhi last week. In his forthright address in the presence of the prime minister, who had inaugurated the conference, Justice Ramana pointed out that the government accounts for half the pending cases in court. He added the striking point that if all wings of the government did their job properly, not only would fewer cases come to court but the judiciary would be spared the unwilling role of having to make policy pronouncements on a range of issues, frequently crossing the Lakshman rekha separating the powers of the legislature, executive and judiciary. Justice Ramana specifically pointed to the fact that the burgeoning dockets of land and revenue disputes are symptomatic of the fact that rural and urban bureaucracies are not functioning optimally. But he also pointed to the absurdity of fights between government departments, or between state-owned companies and the government ending up in court.

The more serious problem that he highlighted, however, was the wilful weakening of the processes of democratic functioning that result in the lack of thought-through legislation. The paucity of public consultation, whether within Parliament or among civil society, is evident in the growing number of appeals before courts. Justice Ramana pointed to frequent ambiguities in laws that end up in court for interpretation when the opinion of legal departments could just as well have been sought. No less concerning is the growing abdication of legislative responsibility by lawmakers that has resulted in laws being pushed through Parliament without adequate debate or consultation. The feat of state legislative Assemblies passing laws in record time without a single debate has been well known for some years. Now, the decline of reasoned debate in Parliament has become a serious issue. Justice Ramana stated the obvious by pointing to the need to debate Bills clause by clause and “threadbare” before enacting laws to minimise the scope for litigation.

It is no coincidence that several consequential and controversial laws that have been rammed through Parliament in recent years have all ended up in appeals before the Supreme Court — the Citizenship Amendment Act, the reading down of Jammu and Kashmir’s special status, and the three farm laws, which, of course, the government subsequently repealed. To this weakness, Justice Ramana added the rising tide of contempt petitions because court decisions are not implemented. As he pointed out, deliberate inaction by governments despite judicial pronouncements is not healthy for democracy. One case in point is the states’ failure to implement a 2014 Supreme Court directive to immediately release under-trial prisoners who have served half their term without the completion of their trial. This is a serious issue given that Indian jails are overflowing with under-trial prisoners. When poor governance at all levels is added to the problem of poor court infrastructure, the average Indian is not just being denied delayed justice but any justice at all.