V.R. Krishna Iyer
A look at the state of affairs 60 years after Independence.
The tricolour flies high, but today the Indian judicial culture flags. India liberated itself from the imperial yoke after a long struggle. Swaraj was won, without a war, in August 1947. The native princes vanished. A large unified democracy was wondrously woven together. The people of India, through Prime Minister Jawaharlal Nehru, made a tryst with destiny. They resolved that every Indian shall share in the freedom and enjoy social, economic and political justice, together with fine-tuned fundamental rights, in a poverty-free, secular society.
In the Constituent Assembly the Founding Fathers enacted a Constitution, inscribing therein a trinity of state instrumentalities: the Executive, the Legislature and the Judiciary. The Judiciary, though without purse and sword, was the most august wing because it had paramount corrective power over the Executive when it violated constitutional prescriptions, and over the Legislature when it transgressed the provisions of suprema lex as interpreted by the judges (who were sometimes authoritarian, idiosyncratic and absolutist), and vigilantly functioned as qui vive with respect to every Indian’s human rights.
The Judicature, a unitive pyramid of power, had at the High Court level considerable power to issue writs and directives. And at the level of the Supreme Court it had a vaster jurisdiction since it was functionally infallible. This was so because it enjoyed constitutional finality and exercised the ultimate jurisdiction to declare the law under Article 141, to decide civil disputes and to command the effective support of the Executive and the Legislature to carry out rulings pronounced from its Bench, while itself acting within the ‘Lakshman Rekha’ crafted in the Constitution.
The judicial process, attuned to the principles of natural justice, adopted the well-established adversarial system of adjudication. The pattern of the court, in its ascending tiers, followed the hierarchical structure and was accessible, under the Constitution, to every Indian. It has on rare occasions defaulted, delayed and deviated. But such instances have been rectified later by larger Benches, or criticised by jurists or set right by means of constitutional amendments. Truth to tell, the justice system still has the tenor of the British band and lacks the notes of Bharat’s veena. This is in contrast with the situation in the U.S., where the basic structure of the judicature and federal jurisprudence are essentially American.
In its performance the Judiciary suffers less from the pathological infirmities of the other two wings. Indeed, the nation holds the judicature high in its esteem since some luminous members on the Bench are as good as the best in the Commonwealth or the U.S.
Even so, while a critical examination of the judicial process reveals a remarkable level of creativity and humanity, it is at times marred and mangled by grave and goofy theatricality, blatant deviances and daring delinquencies. The fundamental values of the Constitution and the autonomy implicit in parliamentary jurisprudence and Cabinet initiatives are often ignored. These are rare instances but spoil the majesty of law. The country has a non-negotiable and none-too-late obligation to scotch lazy litigative locomotion, judicial somnolescence and administrative pachydermy.
At the time of Independence the Indian judiciary had a single pyramidal structure with a federal court at the apex as laid down in the Government of India Act, 1935. This institutional solidarity and unitive infrastructure continued until the Constitution was enacted and the Supreme Court was created. The Federal Court was eliminated and the judicial powers of the High Courts and the Supreme Court were constitutionally sanctified with vast new vistas of jurisdiction and jurisprudence. The appointments, the perimeters and parameters of power and performance, and the procedural and substantive principles of forensic operation from the floor level to the highest deck, were all governed by the Constitution. Loosely speaking, the present system is largely borrowed from what the British left behind.
The British Crown had jettisoned India from the Empire, but colonial law and feudal justice has not been replaced or displaced by dynamic principles of socialist, secular, democratic justice meeting the raw realities of Indian life. Judicial jurisprudence has not possessed a progressive élan or innovative and creative national commitment one would have expected from a system that was to administer social and economic justice in the context of penurious humanity, reflecting the preambular objectives.
Pending cases are astronomical in number, which erodes people’s trust in the Judiciary. Lazy litigative locomotion consuming considerable dilatation from deck to deck, with supernumerary stages, has led to dockets piling up. One reason is that many judges dispose of cases without deciding the real issues, thus leading to the rebirth of the problems.
The Judiciary is a national institution that the people hold in the highest esteem. In a democracy it is not unwise to acquaint the public with the truth about the workings of an instrumentality as strategic and sublime as the Judiciary. The best way to eliminate the shortcomings of our judicial system is to keep our citizens informed about them.
Litigation is now a terror and horror. It is never final and is ever perennial. It bankrupts both sides, shocks and shames socio-economic egalite. Chief Justice K.G. Balakrishnan recently stated that 2.59 crore cases were pending disposal. Of this, 98 lakh are in the High Courts and 43,000 in the Supreme Court. There are several thousand cases where judgments have not been delivered long years after arguments are over. Judicial officers adopt cover-up devices to hide this truth from the people. Sometimes judges of superior courts retire or secure transfers without pronouncing pending judgments. Thus the backlog may be partly blamed on the judges themselves who listlessly listen to hours of arguments, allow months and years of adjournments, on matters that would be disposed of in a fraction of that time period in the U.S. and the U.K. There are subordinate courts where adjournments are liberal and there are no cases to hear in the afternoons. On the contrary, I have seen in Delhi courts where a presiding judge hears two or three cases simultaneously, making the public trial of cases a farce or a scandal.
There is hardly any effort on the part of the presiding officers to narrow down the disputes by means of a preliminary hearing and suggesting reasonable settlements to avoid prolixity of evidence and procrastination of arguments. There is no endeavour on the part of the Legislature or the Judiciary to simplify procedures by substantially amending the Civil Procedure Code, the Code of Criminal Procedure and the Evidence Act which are too archaic and arcane in the age of technology.
There are, of course, marvellous exceptions, wonders of erudition, tirelessly industrious and capable judges.
Technology can diminish the avalanche of dockets. We only hear about the clamour for the appointment of more judges, which can have negative results if Parkinson’s Law and the Peter Principle are true. Why not consider making notably capable and medically fit judges, ad hoc judges upon their retirement? Similarly, senior advocates who are not avariciously ambitious could be persuaded to be on the Bench for a term, even as District Judges.
The plurality of appeals, the frequency and dilatory revisions and reviews, can be avoided if the system is slimmed down. A.P. Herbert, a literary celebrity, in a lovely blend of wit and wisdom, observed: “The institution of one court of appeal may be considered a reasonable precaution; but two suggest panic.” People can be taught to believe in one Court of Appeal; but when there are two they cannot be blamed if they believe in neither.
In India three, four or more appeals, revisions, reviews and special leave petitions make litigation a horrendous gamble. We urgently need three Judicial Commissions at the national and provincial levels: an Appointments Commission, a Performance Commission and a Punitive Scrutiny Commission. They should have the power even to terminate services in cases of gross judicial misconduct.