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Insights into Editorial: India’s judiciary and the slackening cog of trust

 

 

Introduction:

Centrality of justice in human lives is summed up in a few words by the Greek philosopher, Aristotle: “It is in justice that the ordering of society is centred.” Yet, a vast majority of countries have highly corrupt judiciaries.

 

Forms of Corruption in Judiciary:

Judicial corruption is inimical to judicial independence and to the constitutionally desired social order.

Judicial corruption takes two forms: political interference in the judicial process by the legislative or executive branch, and bribery.

Despite accumulation of evidence on corrupt practices, the pressure to rule in favor of political interests remains intense.

For judges who refuse to comply, political retaliation can be swift and harsh.

Bribery can occur throughout the chain of the judicial process: judges may accept bribes to delay or accelerate verdicts, accept or deny appeals, or simply to decide a case in a certain way.

Court officials coax bribes for free services; and lawyers charge additional “fees” to expedite or delay cases.

 

Why there is an erosion of trust in the lower judiciary:

  1. Our focus here is on the functioning of and erosion of trust in the lower judiciary comprising high courts, and district and sessions courts.

A distinction between substantive and procedural justice is helpful.

  1. Substantive Justice:
    1. Substantive justice is associated with whether the statutes, case law and unwritten legal principles are morally justified (e.g., freedom to pursue any religion).
  2. Procedural justice
    1. Procedural justice is associated with fair and impartial decision procedures.
    2. Many outdated/dysfunctional laws or statutes have not been repealed because of the tardiness of legal reform both at the Union and State government levels.
  3. Worse, there have been blatant violations of constitutional provisions.
    1. Examples: The Citizenship (Amendment) Act (December 2019) provides citizenship to — except Muslims — Hindus, Buddhists, Sikhs, Jains, Parsis and Christians who came to India from Pakistan, Bangladesh and Afghanistan on or before December 31, 2014.
    2. But this flies in the face of secularism and is thus a violation of substantive justice.
  4. A striking example of tortuous delay in the delivery of justice is the case of Lal Bihari. He was officially declared dead in 1975, struggled to prove that he was alive (though deceased in the records) and was finally declared alive in 1994 (Debroy, 2021).

Thus, both departures from substantive and procedural justice need deep scrutiny.

Alongside procedural delays, endemic corruption and mounting shares of under-trial inmates with durations of three to five years point to stark failures of procedural justice and to some extent of substantive justice.

 

Case pendency’s in Judiciary:

  1. According to the National Judicial Data Grid, as of April 12, 2017, there are 24,186,566 pending cases in India’s district courts, of which 2,317,448 (9.58%) have been pending for over 10 years, and 3,975,717 (16.44%) have been pending for between five and 10 years.
  2. As of December 31, 2015, there were 4,432 vacancies in the posts of [subordinate court] judicial officers, representing about 22% of the sanctioned strength.
  3. In the case of the High Courts, 458 of the 1,079 posts, representing 42% of the sanctioned strength, were vacant as of June 2016.
  4. Thus, severe backlogging and understaffing persisted, as also archaic and complex procedures of delivery of justice.
  5. Extreme centralization of power in the Centre and a blatant violation of democratic values under the NDA have had disastrous consequences in terms of violent clashes, loss of lives, religious discord, assaults on academic freedom, and suppression and manipulation of mass media.

 

Prevailing issues in field of Judiciary:

  1. Exercise of extra-constitutional authority by the central and State governments,
  2. Weakening of accountability mechanisms,
  3. Widespread corruption in the lower judiciary and the police, with likely collusion between them,
  4. The perverted beliefs of the latter towards Muslims, other minorities and lower caste Hindus,
  5. A proclivity to deliver instant justice,
  6. Extra-judicial killings,
  7. Filing first information reports against innocent victims of mob lynching — specifically,
  8. Muslim cattle traders while the perpetrators of violence are allowed to get away — have left deep scars on the national psyche.

While trust in the judiciary is positively and significantly related to the share of undertrials for three to five years under total prisoners, it is negatively and significantly related to the square of share of under-trials.

However, the negative effect nearly offsets the positive effect. So, while trust in the judiciary marginally rises with the proportion of undertrials until the threshold (0.267) is reached, it decreases beyond that point as the proportion of under-trial inmates rises.

 

Legal framework to curb corruption:

  1. Various sections of the Indian Penal Code (IPC) provide criminal punishment for public servants who disobey relevant laws or procedures, frame incorrect or improper documents, unlawfully engage in trade, or abuse their position or discretion.
  2. The Prevention of Money Laundering Act, 2002 seeks to prevent money laundering including laundering of property through corruption and provides for confiscation of such a property.
  3. It mainly targets banks, financial institutions and intermediaries such stock market intermediaries.
  4. The Right to Information (RTI), 2005 Act represents one of the country’s most critical achievements in the fight against corruption.
  5. Under the provisions of the Act, any citizen may request information from a public authority which is required to reply within 30 days.
  6. The Act also requires every public authority to computerize its records for wide dissemination and to proactively publish certain categories of information for easy citizen access.
  7. This act provides citizens with a mechanism to control public spending.
  8. There are various bodies in place for implementing anti-corruption policies and raising awareness on corruption issues.
  9. At the federal level, key institutions include the Supreme Court, the Central Vigilance Commission (CVC), the Central Bureau of Investigation (CBI), the Office of the Controller & Auditor General (C&AG), and the Chief Information Commission (CIC).
  10. At the State level, there are local anti-corruption bureaus such as the Anti-corruption Bureau of Maharashtra.

 

Conclusion:

In sum, erosion of trust in the judiciary could severely imperil governance.

Judicial corruption means the voice of the innocent goes unheard, while the guilty act with impunity.

A non-corrupt judiciary is a fundamental condition for the endorsement of rule of law and the ability to guarantee basic human rights in society.

The judiciary must therefore be an independent and fair body that fights corruption, not the other way around.

Equal treatment before the law is a pillar of democratic societies. When courts are corrupted by greed or political expediency, the scales of justice are tipped, and ordinary people suffer.