India’s judiciary and the slackening cog of trust

Departures from substantive and procedural justice need deep scrutiny as the fallout could severely imperil governance

Updated - May 09, 2022 03:24 pm IST

Published - May 09, 2022 12:06 am IST

All is not very well

All is not very well | Photo Credit: Getty Images

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.

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 favour of political interests remains intense. And 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.

A distinction

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. Substantive justice is associated with whether the statutes, case law and unwritten legal principles are morally justified (e.g., freedom to pursue any religion), while procedural justice is associated with fair and impartial decision procedures. Many outdated/dysfunctional laws or statutes have not been repealed because of the tardiness of legal reform both at the Union and State government levels. Worse, there have been blatant violations of constitutional provisions. 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. But this flies in the face of secularism and is thus a violation of substantive justice. 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.

Under the different regimes

All was not well with the lower judiciary under the United Progressive Alliance regime. According to Transparency International (TI 2011), 45% of people who had come in contact with the judiciary between July 2009 and July 2010 had paid a bribe to the judiciary. The most common reason for paying the bribes was to “speed things up”. There were “fixed” rates for a quick divorce, bail, and other procedures (Banerjee, 2012). The Asian Human Rights Commission (AHRC) (April 2013) estimates that for every ₹2 in official court fees, at least ₹ 1,000 is spent in bribes in bringing a petition to the court.

There is a scarcity of evidence on bribes and malfeasance under the National Democratic Alliance (NDA). A few broad-brush treatments are, however, worrying. Freedom House’s ‘Freedom in the World 2016 report for India’ states that “the lower levels of the judiciary in particular have been rife with corruption” (Freedom House 2016). The GAN Business Anti-Corruption Portal reports that, “[t]here is a high risk of corruption when dealing with India’s judiciary, especially at the lower court levels. Bribes and irregular payments are often exchanged in return for favourable court decisions” (GAN Integrity 2017).

Allegations of corruption against High Court judges abound. For example, Tis [Tiz] Hazari District Court Senior Civil Judge, Rachna Tiwari Lakhanpal, was arrested in September 2016 for allegedly accepting a bribe to rule in favour of a complainant in a case. Such examples are indicative of the widespread malaise of corruption in the lower judiciary. Worse, there are glaring examples of anti-Muslim bias, often followed by extra-judicial killings by the police. Anti-Muslim bias alone may not result in erosion of trust but if combined with unprovoked and brutal violence against them (e.g., lynching of innocent cattle traders) is bound to.

Case pendency

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. 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. 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. Thus, severe backlogging and understaffing persisted, as also archaic and complex procedures of delivery of justice.

Extreme centralisation 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. Exercise of extra-constitutional authority by the central and State governments, weakening of accountability mechanisms, widespread corruption in the lower judiciary and the police, with likely collusion between them, the perverted beliefs of the latter towards Muslims, other minorities and lower caste Hindus, a proclivity to deliver instant justice, extra-judicial killings, filing first information reports against innocent victims of mob lynching — specifically, Muslim cattle traders while the perpetrators of violence are allowed to get away — have left deep scars on the national psyche. It may seem far- fetched but it is not, as these are unmistakable signs of abject failure of governance.

Our analysis reinforces this concern. 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.

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

Vani S. Kulkarni is with the Department of Sociology, University of Pennsylvania, U.S.; Veena S. Kulkarni is with the Department of Criminology, Sociology, and Geography, Arkansas State University, U.S.; and Raghav Gaiha is with the Population Aging Research Centre, University of Pennsylvania, U.S.

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