Issue 40 Vol II, May 31, 2007

L A W  &  J U S T I C E

Indolence in India’s judiciary
When humans turn trees waiting for justice in the courts
Gobind Thukral

Indian constitution guarantees independence of judiciary and at senior levels, judiciary tends to guard it with zeal. At the Supreme Court and high courts, the judges at times do not hesitate to reproach the political executive and bureaucracy. Also, for the past some years so the concept of public interest litigation has taken roots and proper shape and the courts have intervened on behalf of the harassed citizenry in an effective manner. It has tended to enhance prestige of the judiciary.

In fact, judiciary, particularly at the higher level is the last resort for the people to seek justice, to tame the wayward executive and get some relief. It is the one institution that still is held in some kind of awe.

But it is in the area of accountability which is decreed in the constitution that courts are getting lax. Corruption too is increasingly becoming more visible.  Whose responsible for that is point of debate intense debate, both in the media and the public?

Transparency International in its latest report on the judiciary for over 177 countries this month finds the Indian judiciary lacking at many levels, thus causing the miscarriage of justice.

Transparency International noted “Corruption has two manifestations: one is the corruption of judicial officers and the other is corruption in the broader justice system. In India, the upper judiciary is relatively clean, though there are obvious exceptions. Proceedings are in open court and documents are available for nominal payment. The accused is entitled to copies of all documents relied on by the prosecution free of charge. Copies of authenticated orders can also be made. There is an effective system of correction in the form of reviews and appeals.”

But it finds in the broader sense justice institutions suffer from systematic systemic. “There is a high level of discretion in the processing of paperwork during a trial and multiple points when court clerks, prosecutors and police investigators can misuse their power without discovery. This has provoked comments on the connivance of various functionaries in the system. ‘Criminal justice succumbs to money power,’ wrote former Supreme Court Justice, V. R. Krishna. The Center for Media Studies conducted a countrywide survey in 2005 on public perceptions and experiences of corruption in the lower judiciary and found that bribes seem to be solicited as the price of getting things done. The estimated amount paid in bribes in a 12-month period is around R2,630 crores (around US $580 million). Money was paid to the officials in the following proportions: 61 per cent to lawyers; 29 per cent to court officials; 5 per cent to judges; and 5 per cent to middlemen.” This could be confirm by visiting lower level courts. The public is losing confidence.

The primary causes of corruption are delays in the disposal of cases, shortage of judges and complex procedures, all of which are exacerbated by a preponderance of new laws. As of February 2006, 33,635 cases were pending in the Supreme Court with 26 judges; 3,341,040 cases in the high courts with 670 judges; and 25,306,458 cases in the 13,204 subordinate courts. This vast backlog leads to long adjournments and delay prompts people to pay to speed up the process. In 1999, it was estimated: ‘At the current rate of disposal it would take another 350 years for disposal of the pending cases even if no other cases were added. Recently there has been some effort to dispose of the cases.

The ratio of judges is abysmally low at 12–13 per one million persons, compared to 107 in the United States, 75 in Canada and 51 in the United Kingdom. If the number of outstanding cases were assigned to the current number of judges, caseloads would average 1,294 cases per Supreme Court judge, 4,987 per high court judge and 1,916 cases per judge in the lower courts. Vacancies compound the problem. In March 2006, there were three vacancies in the Supreme Court, 131in the high courts and 644 in the lower courts. Judges cope with such case lists by declaring adjournments. This prompts people to pay ‘speed money’.

The degree of delays and corruption has led to cynicism about the justice system. This erosion of confidence has venomous consequences that neutralise the deterrent impact of law. People seek shortcuts through bribery, favours, hospitality or gifts, leading to further unlawful behaviour. A prime example is unauthorised building in Indian cities. Construction and safety laws are flouted in connivance with persons in authority.  When judiciary intervenes at the highest level, the political class in order to garner votes finds ways and means to overcome the judicial intervention. It required a great deal of zeal and perseverance to clean the polluting buses, bring some order in chaotic cities and cleanse the dross. Executive is corrupt and lethargic and when every avenue is exhausted, the people come to the courts, they get some relief.  But the problems are so many and so compounded, even judicial intervention is of little avail.  In the words of former chief justice J. S. Anand in 2005, ‘Delay erodes the rule of law and promotes resort to extra-judicial remedies with criminalisation of society . . . Speedy justice alone is the remedy for the malaise.’”

Transparency International while suggesting reforms to fight corruption in the judiciary has suggested,” It must take into account all the components woven into the legal-judicial relationship, including the investigating agencies, the prosecution department, the courts, the lawyers, the prison administration and laws governing evidence. These issues are addressed in the 2003 report of the Committee on Reforms of the Criminal Justice System, known as the Malimath Committee, whose recommendations are still under consideration.

Some of the measures could play a pivotal role and may have a salutary effect upon the justice system as a whole. Number of judicial officers should be increased and existing vacancies filled promptly to prevent the case backlog from further increasing. The Supreme Court recommends that the existing ratio of judges should be raised from 12 per million people to 50 in a phased manner over five years. The Court has also directed central and state offices to fill all vacancies in high courts and the subordinate courts.

Introducing technology to manage court records has had some success in enabling the Supreme Court to reduce its backlog since 1998 by bundling cases that seek interpretation on the same subject. Five-year plan for the computerization of the justice-delivery system is now underway. It will provide computer rooms in all 2,500 court complexes, laptops to 15,000 judicial officers, and technology training to judicial officers and court staff. It will also provide a database of new and pending cases, automatic registries, and digitisation of law libraries and court archives. Yet we have not changed the old British legal system that is weighed heavily against the poor. It is costly and alien in all respects.

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