Why the judiciary is failing
The rule of law is a necessary though not a sufficient condition for justice, but our courts are failing to provide even this
Public intellectuals and media commentators profess a near religious belief in the “rule of law”, never mind that rules are made by the powerful and implemented in a system where those with resources can get them interpreted to their advantage. This article, the first in a series of three, will seek to suggest that the rule of law is a necessary condition for the survival of civilised society, but it is not sufficient for the delivery of justice. This first piece will focus on the judiciary, especially the higher judiciary, the next one on police reforms, and the last one on civil society. In the last, I will argue that negotiated rights and duties between local communities will have a better chance of succeeding in maintaining the rule of law and communal peace than mere emphasis on constitutionalism.
The Supreme Court has failed to do its job, both as a constitutional court and a court of final appeals. It has neither been able to enforce the law satisfactorily, nor ensured relative uniformity in judgments so that justice is seen to be delivered. Ask anyone on the street about whether they will get justice from a court, and most would be ambivalent at best. This is the result of not only endless delays, but also a huge variability in verdicts. Last month, a three-judge bench headed by Justice U U Lalit, who will become Chief Justice this August, reduced the sentence of a rapist-murderer of a four-year-old child, giving, among other things, the ridiculous argument that “every sinner has a future”. Comments in the social media were uniformly negative. And yet, on the same day, a lower court in Thane sentenced another rapist-murderer of a seven-yearold to death; in 2021, the Bombay High Court, in a similar case, upheld a death sentence. The convicted rapists in the Nirbhaya case were all executed.
If court judgments can be so variable and whimsical, depending on who is doing the judging, how can anyone expect justice? It may all depend on which side of the bed a judge may have gotten up from, or how keenly they are listening to public opinion surrounding specific crimes.
Last year, authors Daniel Kahneman, Olivier Sibony, and Cass R Sunstein, published a book called Noise: A Flaw in Human Judgment, which showed (among other things) how similar cases tended to get widely differing sentences in the US. The creation of a Sentencing Commission in 1984, which set guidelines for sentencing in similar cases, reduced the variability in judgments. But, over time, the US higher judiciary diluted these guidelines so as to give judges greater leeway to use their individual instincts to decide cases.
This is exactly what our own Supreme Court did to make courts unanswerable to any centralised guidelines. In 1999 and 2002, the Atal Bihari Vajpayee government made major changes to the Code of Civil Procedure and put timelines on the number of adjournments that can be given in civil proceedings, the issue of summons and the filing of written statements. But the Supreme Court effectively killed these laws by suggesting that these are mere guidelines, not legal limitations. Now, practically no time limits apply if a judge decides to endlessly prolong a case. How can justice be real if it is not given in reasonable time?
The second issue relates to the Supreme Court’s apparent preference for taking up limelight-hogging public interest litigation (PILS) compared to bread-and-butter cases of justice. An analysis by the Supreme Court Observer shows that on an average, over 26,000 PILS were filed annually between 1985 and 2019, totalling over 900,000 PILS in all. While the apex court obviously can pick and choose which ones it wants to hear, the deluge cannot but be the result of a general belief among litigants that PILS make more sense than regular legal recourse. In recent years, the Supreme Court has taken up everything from deciding whether there should be bars on highways to whether SUVS should be taxed more for entering Delhi, and whether oxygen and vaccine supplies have been managed properly during the Covid spike of 2021. Ask yourself, which Supreme Court in any part of the world concerned itself with such policy issues when governments were fighting a once-in-a-century pandemic with their backs to the wall and with finite resources? But the Indian Supreme Court could not hold itself back from intervening in such policy-related cases.
On the other hand, real constitutional issues — on the legality of the Citizenship Amendment Act, the rights of Hindus to administer their own places of worship, article 370 abrogation, and the review of the Sabarimala judgment — are being left unaddressed for years on end. The Ayodhya dispute was decided a full nine years after the Allahabad High Court judgment of 2010, and this too happened only after a lot of hemming and hawing in court over out-of-court mediation. One can well suspect that if the 2019 poll verdict had not been decisive, the court could have chosen to kick the can down the road once more. On the other hand, the National Judicial Appointments Commission, a law which was passed near unanimously by Parliament and state legislatures, was quickly picked on by the judiciary for quick resolution — a resolution in which the judiciary itself was an interested party.
The constitutional courts seem to pick cases with headline potential, especially in the English and international media, even though these may adversely impact business and the economy, or sometimes have no impact at all. Thus, we had sweeping judgments in the 2G spectrum and coal blocks allocation cases, which caused huge losses even to parties which were not part of the fraud. We have courts pontificating on how governments cannot amend some “basic features” of the constitution without ever defining what constitutes a basic feature. Apparently, property rights are not a basic feature, but judges deciding on judicial appointments is. Privacy is a fundamental right, when millions of Indians are signing away their rights to Big Tech. Bail, not jail, is supposed to be the norm, but the lower courts can ratify the arrest of anyone who lampoons a powerful politician.
For greater focus, the Law Commission has suggested that the Supreme Court should be split into two, one being a constitutional court in Delhi, and the other being a final court of appeals in non-constitutional cases. But so far the apex court has shown no interest in its own reform. How can it ever uphold the law for the aam aurat if it cannot take the medicine itself ?