In the past two years that I have been back in India, I have seen two spontaneous eruptions of large scale fury from the public against the deplorable state of certain affairs in India. One was Anna Hazare’s campaign against corruption. The other is the current outpouring of anguish by hordes of people daily in the centre of Delhi to protest the ghastly rape in the heart of Delhi, and its corollary, the poor protection of women on Indian streets.
These two uprisings have a few things in common. They depict a society simmering with anger, a society fed up, with no recourse left but to demonstrate. Most importantly, they depict a society where the old cliche “justice delayed is justice denied” is no longer a cliche. Laws and rules have become mostly impotent, and the criminal minded are growing more and more brazen in benefiting themselves.
Anna Hazare’s fasts, boosted by Kejriwal’s immaculate stage management, mobilized an incredible number of Indians across the country. A nation rose, fed up of being held hostage to venal officials and politicians in every rung of every possible government or quasi-government institution. Anna Hazare and Kejriwal demanded the creation of an extra-constitutional body that would punish the corrupt. Those demanding bribes, and those who bribed, would both be held accountable.
For a moment, it looked like a new beginning would come to pass. But it was only for a moment. In hindsight, many reasons have been given for the fizzling out of his euphoric campaign. His occasionally bizarre high-handed comments, the autocratic nature of some of the leaders of the movement, disunity among the key stakeholders, and seemingly inflexible demands. All of these flaws may be accurate, but one flaw that pricked the balloon of success was the “my way or the highway” demand for an extra-constitutional body to dispense justice on the corrupt. Who regulates and monitors the justice dispensing body? Would it be another body? Who monitors that monitoring body? In programming jargon, that would be called an “infinite recursive loop”. The “extra-constitutional body” gave the democratic government the ammunition it needed to ward off the enemy before the citadel fell.
If one were to dissect and simplify Anna Hazare’s campaign into a problem statement, it would read “The justice system is no longer working to punish the corrupt within an acceptable time frame.” There are many solutions besides an extra-constitutional body. A constitutionally acceptable solution would be to reform the justice system, with some tactical fixes that provide immediate relief while the longer term reforms take hold. Had Kejriwal and Hazare pushed for justice reform, it might have been a more palatable solution for the government to implement. The movement could have then used its popularity with the people to keep the pressure on the government to reform.
Similiarly, the gang-rape case in Delhi has thinkers and activists proposing various solutions. Some suggest new laws, others suggest stricter punishment such as castration, and some suggest fast track courts or at least a different court process for rape cases. While there is merit in our updating rape laws, police procedures, and security, we must also implement the third suggestion i.e faster courts and quicker dispensation of justice. Quicker justice is now an absolute necessity. Passing any new rape laws is useless if the enforcement of the law is ineffective.
There are a combination of issues, societal and institutional, that are at the core of why such a crime was committed and how it went undetected. But one of the problem statements in the Delhi gang-rape case is the same as the Anna Hazare movement “The justice system is no longer working to punish rapists within an acceptable time frame.” Hence, the criminal minded feel emboldened to act according to their animal nature, safe in the knowledge that by the time any sentence is served, they have many years to continue living out their lives as normal. As per a recent One India News article, there are 2 sitting MPs and 6 MLAs with cases of crime against women pending against them.
In our constitution, as it is in any democracy, there are three pillars. The Legislative pillar frames the laws, the Executive carries them out, and the Judiciary makes sure that the laws are followed. But in our democracy, one of our pillars has been weakened by years of neglect. Hence we hobble when we could be running. We think we are running, with China just ahead of us. In reality we are hobbling. What is amazing that despite our impediment, we have been second only to China in growth. Imagine the possibilities if we could run, unschackled by the fetters we have cast upon ourselves..
Many would say that the assertions made so far are simply not true. India has an active judiciary, especially the Supreme Court. That is correct, but it’s time to look at the situation another way. Why does the Supreme Court need to intervene into matters that are well beneath their purview? The Supreme Court Justices have far more pressing national matters than passing judgements on demolition of illegal structures in Delhi, or upbraiding the CBI, or getting involved in the Jessica Lal case. It’s like asking the CEO of ITC to review the performance of a mid-level employee and order the appropriate action. Laws need to be enforced at the level of court they belong, and in a reasonable timeframe.
Imagine for a moment what a society in India could be like if rules were followed, laws were upheld, and those who broke rules and laws were held accountable. Unruly traffic would significantly decrease. Who would want to pay a hefty fine, or definitely go to jail, for breaking a red light or driving rashly? The culture of bribery would nearly end. Which police constable or low level government official would take the risk of losing their job and livelihood for the sake of a quick buck, if they were to know that they would definitely be prosecuted within 6 months? The culture of lawlessness that has permeated into the day-to-day life of India would eventually be wiped out. It may not happen overnight, but it will happen. Today, bribing a traffic cop in the US is unthinkable. Why is that so? Because although it began with an efficient court system that made bribing just not worth the risk, the concept is now so firmly embedded into popular thinking that the idea of bribing is almost non-existent. The first thing that one thinks of when pulled over by a traffic cop is how to defend one’s action that no rule was broken. If it does not work, then one may try to sweet talk the cop. The final step may be to use emotional appeal, through tears or a creative sob story. Nowhere in that spectrum does the idea of bribing the cop even arise. Nor does the cop ask for one, because he/she knows that if the victim complains, there will be definite severe repercussions.
Prime Minister Manmohan Singh has spoken many times of quelling urban migration, of building an economy where people like “Nirbhaya” should not have to leave their villages and migrate to cities just to earn a living. But consider this: If a poor villager is to stay back in his village, he will need some land to live on, and perhaps some more land to farm. However, India is currently in a situation where the protection of property rights is virtually non-existent. A rich or powerful person can merely occupy a poor man’s land, be it his home or his farm, and there is no guarantee that the poor man will get his land back in his lifetime. Why then should a poor man take the risk of staying back in his village, when his basic rights, as enshrined in the constitution, are not protected adequately by the courts? In the urban cities, tenants refuse to vacate. If the property owner is forced to file a case against the tenants, it could take 20 or 30 years for the courts to deliver judgement. As a result, tenants have become thieves, protected by the shadow of a beleaguered civil court system.
So what can one do? What is the solution? Commissions on judicial reform have been created multiple times by past governments. Some recommendations have been implemented, many remain. Essentially, the solutions boil down to
- Fix the ratio of judges:population. The ratio (number of judges per million people) in the US is 130, in Canada it is over 75, in the UK it is over 50. In India, the sanctioned number is under 15 at the moment. The real number is even further worsened by the fact that 25% of the sanctioned judges seats is vacant. The Supreme Court even issued a directive to the Union Ministry of Law in 2002 that the subordinate judiciary be increased from 10.5 per million people to 50 per million people within a period of 5 years. Have more diversity amongst the judges, definitely more women.
- Simplify the judgement recording and delivery process. Remove all the archaic language and legalese requirements so that judges can draft a judgement in a day or two, if required. There is no need for lengthy judgements running into hundreds of pages.
- Computerize the courts. I am a regular visitor to the lower courts in Kolkata due to various cases of mine pending now for as long as 10 years. When I step into the courtrooms of the judges court, it feels like I have stepped into a bad period drama, and not even Merchant-Ivory can scrub it up to acceptable norms. The court clerk writes in longhand in some long winded journal. All dates and next steps can be changed with a few bribes in the right places. Anyone can get all the court related information on any case with a bribe, there is no concept of privacy or security. The courts are crying out for a technology upgrade. Mr. Nilekani, are you listening?
- Provide more funding and more financial autonomy to the judiciary. Less than 0.1% of GNP (there was a recent article in TOI which claimed that the spend is now 0.01% of GNP) is spent on funding the judiciary. The judiciary needs more money for many reasons. There was a time when it was a matter of prestige to be a judge in India. They were well paid, got benefits, and were highly respected. Today, only some of the benefits remain. We need to incentivize our people to become judges again. The judiciary needs money if it has to expand the number of judges, provide new courts, upgrade the infrastructure (including technology).
- Enforce new rules that prevent litigants from delaying cases. Stay orders, incorrect address strategies, changing of plaints, number of appeals – all of these need to be limited in some form or the other.
- Implement fast track courts for certain categories of issues where there will be immediate benefit. This is a tactical solution until the long term reforms start to bear fruit. Categories such as Rape cases, Property protection cases, traffic courts are good candidates to start with.
India has come a long way with the financial reforms implemented in the 90s. There is a growing belief that India will regain its former glory in this century. The reality, however, is that no democracy can hope to survive in the long run if the third pillar, the judiciary, is not effective. For India to truly take its place as one of the great countries in the world, it has to foster a culture of law-abiding citizenry. Among the many things it needs to sort out, the court system is one of the most crucial. As long as we do not bring our focus to reforming the delivery of justice, we can only hang our heads in shame that we were not able to redeem the memory of “Nirbhaya“, and pray for a miracle that will prevent many more “Nirbhayas” in the future.
There are many concerned individuals, or groups, that are advocating reforms. Here are links to a few.
- Forum for Fast Justice: A forum in Mumbai created to raise awareness of the issues with the judiciary and to push for judicial reform. http://fastjustice.org/index.html
- A recent op-ed in Times of India on the need for Judicial reform post the tragedy of “Amaanat”.
- Justice Barred: A piece written in Tribune India on Mar 15th 2012.
- Blind to what, Your Honour?: An article in Times of India by Addl Solicitor General of India, Indira Jaising, on the kind of reforms, judicial and otherwise required to prevent such rape crimes from happening in the future.
- Need for a smarter & faster judicial process: A fellow blogger’s view on the state of the judicial system in India.
- Some statistics on the justice system in India.