Speaking at a function held in Kolkata yesterday, the President of India, Honourable Pranab Mukherjee has asked the country’s judiciary to: “ensure that those who are in the wrong side of the law are dealt with swiftly and effectively to maintain social balance.” Iterating further, Mukherjee said: “though the Indian judiciary has preserved its pre-eminent place in Indian democracy, one area where it has lagged behind is not fully meeting the aspirations of the people and provide quick, speedy, and accessible justice to those who knock at its doors.”
The President is correct in his two statements, though to a limited extent. It is correct to say that a stable society to be built in a democratic framework an independently functioning judiciary that is capable of delivering justice is a prerequisite. However to expect the judiciary to singlehandedly achieve this, is failure to acknowledge the role of the state and its other apparatuses in a democracy.
Mukherjee, the 13th President of India, has mastered history, political science, and law and has served India, as it’s foreign, defence, commerce and finance minister. Mukherjee served two terms as the finance minister and in between, he also served as the Deputy Chairman of the Planning Commission (1991-96), second only to Mr. P. V. Narasimha Rao, the 9th Prime Minister of India. Mukherjee has also served on the Board of Governors of the IMF, World Bank, Asian Development Bank and the African Development Bank. He has led the Indian delegations to the Commonwealth Finance Ministers’ Conferences in 1982, 1983 and 1984; the United Nations General Assembly in 1994, 1995, 2005 and 2006, the Conference of Commonwealth Heads of Government at Auckland in 1995, and the Non-Aligned Foreign Ministers’ Conference at Cartagena in 1995.
To quote the former Chief Justice of India, Justice Ramesh Chandra Lahoti: “governments are under an obligation to provide adequate machinery for justice, to appoint more judges and to give them better emoluments and facilities; to build more court houses; to enact better laws; to devise better dispute resolution procedures; and to administer more effectively and equitably; rather than to blame lawyers and judges for the increase and proliferation of litigation.” Justice Lahoti served as the 35th Chief Justice of India and retired in November 2005. This candid reflection of facts by Justice Lahoti has found resonance in similar statements made by all Chief Justices who have thus far served India.
During Mukherjee’s tenure, as the finance minister and in between at the Planning Commission of India, the resource allocation for the judiciary by the government was negligibly low. At no point, it went beyond one percent of the total national plan outlay. It has not improved today.
Today in India there is an estimated backlog of 20,000,000 cases in the trial courts, about 4,100,000 cases in the High Courts and about 49,000 cases in the Supreme Court. For a modern democracy, India has one of the poorest judges to population ratio – estimated to be 14 judges per a million people.
About 16,000,000 new cases are filed before the courts in India each year. Out of this, about 14,500,000 cases are disposed off annually. This implies that a judge decides an estimated 1050 cases every year. Mukherjee should in fact applaud the country’s judiciary for it has not yet revolted against such wanton neglect of the institution by the state.
A substantial number of cases pending in courts are criminal cases. Given the fact that on an average a criminal case could take five to eight years to decide, many under-trial prisoners spend more time in pre-trial detention, than the maximum sentence prescribed for the offenses alleged against them.
In 2002, the Supreme Court of India when it decided All India Judges’ Association and others (petitioners) against Union of Indian and others (respondents), directed the government that an increase in the judges strength from the then existing 10.5 judges for a million people to 50 judges. However, eleven years since, this proposal is yet to be fully implemented due to lack of infrastructure, including the number of judges and facilities for judges to function. The provincial governments have equally refused to cooperate, having failed to provide adequate financial resources to implement the Court’s directives.
Additionally, to improve justice delivery it is just not the number of judges, court buildings and other infrastructure that need to be increased. For example, appointment of public prosecutors is a matter completely under the prerogative of the state. Often appointments of prosecutors are delayed for unacceptable periods. For instance in Thrissur district of Kerala state, the appointment of prosecutors is not made since May 2011.
Justice is not a concept that is exclusively dependent upon the judiciary. The judiciary can only process the lis brought before it. In countries like India, and concerning the context in which Mukherjee was addressing the country’s judiciary, justice is a concept closely associated with the visible presence of the rule of law in the society.
The most important state agency that causes a direct effect upon this perception is the local police. The public judge their police based on the manner in which police as an institution interacts with them. These interactions leave lasting impression upon people’s minds. Police in India however suffer from some of the poorest assessments by the people, so poor that an overwhelming number of people perceive their police just as criminals in uniform.
This is due to the deeply corrupt and inept fashion in which police functions in the country and its demonstrated bias as an institution against guarantying security and safety to persons and property. Fastening basic concepts of accountability, transparency, efficiency, and steadfastness to police was never a priority for any government in India.
Today India has one of the worst performing law-enforcing agencies, bereft of merits and professionalism, and unfit to serve a fast-developing democracy. Given the fact that a large number of cases pending before the courts are criminal cases, it is only natural, that these cases having not properly investigated would end up in acquittals. The conviction rate in India is 4 percent since the past several decades. Contrary to the wrong perception intentionally perpetuated by the government, what is required is equipping the police to undertake their job, as expected by an agency in a democratic state. Instead, the government and government-sponsored committees like the Malimath Committee have recommended that basic laws in India be amended, to take away fundamental concepts of criminal jurisprudence from the laws, like the presumption of innocence and the right to silence.
The country’s judiciary in fact must be praised for all the efforts it has thus far made to drive-in the reality, that it cannot singlehandedly deliver justice. Of the many judgments the country’s Supreme Court has delivered, for instance (i) the Charles Sobraj case in which the Court affirmed its role to interfere “to right the wrong” and “restore the rule of law”; (ii) the Sunil Batra case where the court redefined the rights of prisoners to be treated humanely and to be free from torture; (iii) the Francis Coralie Mullin case in which the Court reiterated that all forms of custodial violence is unacceptable in law and warrants punishment; (iv) the D. K. Basu case in which the court redefined the application of the Criminal Procedure Code, 1974 to prevent mistreatment of persons by the law-enforcement agencies and in the (v) Prakash Singh case where the Court directed, literally, the state to free the law-enforcement agencies from bad political servitude; the Indian judiciary has reiterated its faith in the rule of law within the constitutional fabric. The judiciary has used its wisdom to demand from the government, on all these occasions and more that are not listed here, what the state should do to guarantee justice delivery to the people.
However in India, the state lacks this realisation, or the consciously refuses to admit that the country cannot move forward without radical changes brought into the entire apparatus of justice administration. This includes affirmative actions by the state, its legislature, the judiciary, and the executive. Instead, expecting the judiciary alone to deliver justice without the state and its other entities failing to cooperate with the judiciary is nothing short of blaming the judiciary for the state’s fault.
