RECLAIMING THE JUDICIAL SYSTEM
IN INDIA
(Background paper for the National Convention
on restructuring the judicial system)
While the corporate media often lionises the judicial system as the
only working wing of the State and projects it as the only institution
which stands in the way of a government controlled by criminals, the
vast majority of the country do not see the judicial system as capable
of providing any modicum of justice to them. The system is totally
inaccessible to the poor of the country, being so formal and
procedurally complex that it can only be accessed with the help of
lawyers, whom the poor cannot afford. Even those who can access it
cannot hope to get their disputes adjudicated within a reasonable
time. The majority of undertrials spend more time during trials than
the maximum sentence that can be imposed upon them. Even if they
are out of jail during this time, the agony of defending themselves
during this long trial is more painful and taxing than serving the
sentence that could be imposed. In fact, the agony of a trial through
the judicial system has become the easiest way for the police and
powerful persons who can have the police at their beck and call, to
harass, intimidate and silence inconvenient persons, especially
political activists who are trying to change the oppressive and
exploitative system of the country.
Even if one can get one’s case decided by the court, the course of
justice is often perverted by corruption within the judiciary and
indeed within the entire system of administration of justice. The
corruption within the judicial system is no less than that of any other
institution of the State, and is well known to those who have had to
deal with it. It is less visible because of the lack of any system of
accountability of the judiciary, and because the media is unwilling to
talk about it, due to the fear of contempt. The corruption within the
judiciary is exacerbated by the total lack of accountability of the
judiciary in the present system. Not only is there no system for
disciplining corrupt judges (other than an unworkable system of
impeachment), the Supreme Court has by a self serving judgment
removed judges even from the ambit of criminal investigation. Thus
one cannot even register an FIR against a judge taking bribes openly
without the prior permission of the Chief Justice of India, which has
never been given. The judiciary protects its own very zealously.
On top of all this immunity to the judiciary is the power of contempt of
Court, which can be and has been used by the judiciary to stifle
public criticism, or even an honest evaluation of the judiciary. This
threat of contempt has prevented a frank discussion of the judiciary
by the media, which is partly the reason why there hasn’t been any
serious public debate about the state of the judiciary. And now the
judiciary is even seeking to remove itself from the purview of the Right
to Information Act. After having loudly pronounced that the citizens
have a right to know everything that goes on in every public
institution, the Supreme Court asks the government to effectively
exempt it from the purview of the Act by removing the jurisdiction of
the independent appellate authority, the Central Information
Commission over the Registrar of the Court. It was also recommended
that the Chief Justice should be the final word in deciding whether
any information about the Court should be given out or not. Most
High Court have not even appointed a public information officer under
the Act, and the Delhi High Court has framed rules which prohibits
the release of non judicial information about the court, such as
purchases and appointments. All this has ensured that the judiciary
becomes a law unto itself, totally non transparent, and accountable to
none.
It is this complete insulation from all accountability, which has led to
a situation where it can easily transgress its jurisdiction by interfering
in matters of the formation and implementation of executive policy.
Under the cover of its expansive interpretation of Article 21 (which by
itself is not objectionable), particularly the right to environment, the
judiciary has been ordering the removal of slums from the Yamuna
Pushta, hawkers and rickshaw pullers from the streets of Delhi, and
has even directed the government to take up the highly controversial
project of interlinking of rivers. Sometimes these arbitrary powers are
being exercised against the wishes of the executive, but often in
connivance with the executive, allowing the executive to do what a
democratically accountable government dare not do, such as demolish
the yamuna pushta slums of Delhi or take up the project of
interlinking of rivers.
The recent orders regarding the sealing of commercial establishments
running in residential areas in Delhi is another example of judicial
high handedness. Though it was well within the powers of the
judiciary to stop the violation of the Master plan, it could have ordered
the government to consider altering the masterplan just as they were
ordering the sealing of commercial users. Moreover, it was totally
beyond the jurisdiction of the Courts to order the sealing of properties
even after the Master Plan had been amended to allow commercial
user in some areas, merely because they had been made to give
affidavits earlier that they would stop the commercial user by a
certain date.
It is this lack of accountability which has allowed the judiciary to take
decisions which are against their declared creed regarding the rights
of the poor and trample upon their rights with such impunity. Thus,
after having declared that the Constitution guarantees every citizen
the right to shelter and livelihood, the courts have nonetheless
ordered the homes of hundreds of thousands of slum dwellers of Delhi
and Bombay to be ruthlessly bulldozed, without providing them with
any alternative dwelling. They have also ordered hundreds of
thousands of hawkers and rickshaw pullers to be driven off the streets
of Delhi and Mumbai, thus depriving them of their livelihood, without
making any alternative arrangement for them. While this is partly due
to the elitist background of the judges and the impact of the new
economic policies on their thinking, where human rights have also
been left to market forces, such wanton disregard for basic
constitutional values is also facilitated by the impunity engendered by
this total lack of accountability of the judiciary. For the poor therefore,
the judiciary like the police has become an instrument of oppression
rather than an institution for the protection of their rights. They have
come to fear and hate the judiciary almost as much as they fear and
hate the police.
The ruling establishment, particularly successive law commissions
have devoted considerable thought to some of the problems which
afflict the judiciary, particularly to that of the lethargy of the system.
However, not much thought has been devoted to some of the other
problems such as access of the poor to the system or the elitist
sensitivities and bias of the judges, or even to the issue of judicial
accountability. And the law commissions, manned as they have been,
largely by retired judges, have displayed their own establishmentarian
and elitist biases in their reports. They have therefore suggested
patchwork solutions rather than the radical restructuring of the
judiciary that is required.
Though a radical recommendation of a five fold increase in the
number of judges had been made to deal with the problem of delays,
adequate thought has not been devoted to simplifying the judicial
procedures. Hardly any thought has been given to reforming the
system of appointing judges so as to make it more transparent, fair
and sensitive to the poor. The solution suggested for judicial
accountability has been a feeble in house system where sitting judges
are supposed to hold their own brothers to account. And in the
unlikely event that they hold their brother guilty, they again send the
matter to Parliament for considering the impeachment of the judge.
This is one of those recommendations of the Law Commission which
is acceptable to both the government and the judiciary, keeping the
feeble accountability introduced within the judicial family. The
Judicial Council bill cleared by the Cabinet recently, seeks to give
statutory status to the “In house procedure” for inquiring into
complaints against judges which was adopted by a Chief Justices
conference almost 10 years ago, but which has hardly ever been used.
However the Law Commission’s recommendations made 20 years ago
about a 5 fold increase in the number of judges have been gathering
dust as are most of its even somewhat radical recommendations.
Neither the government nor the judiciary has made any effort to have
those adopted. The record of both the executive and the judiciary
regarding judicial reforms does not inspire any confidence that they
are serious about making the judicial system work. It appears that
both are content with the present non functional and unaccountable
judicial system. And for good reason too. The judges are happy with
the total lack of accountability and impunity that they have in the
system and the government is happy with the non functioning of an
institution which could hold them to account. The media hyped
skirmishes that we see between the judiciary and the executive mask
a much bigger partnership between the institutions, where they have
teamed up together to do what they want with impunity but also
appropriate land and other resources from the poor and give them
away to large vested commercial interests.
It appears clear that unless there is a people’s movement and a
popular campaign for judicial reforms in general and judicial
accountability in particular, which puts pressure on the ruling
establishment, they are not going to take any serious steps to change
the state of affairs. Unfortunately, so far, such a campaign hasn’t
taken shape, partly because the people and the media have shied
away from a critical examination of the judicial system, partly also
because of the fear of contempt.
However, with the judiciary becoming more and more powerful and
increasingly arbitrary and anti poor, allowing the adminstration of
justice to remain in the hands of the elitist ruling establishment would
be suicidal for the common people of the country. Time is running out
for all of us. The people need to take charge and drive this campaign
to reclaim the judicial system. Every citizen of the country has a vital
stake in the proper functioning of the judicial system. Ignoring it will
not only intensify the judiciary’s assault on the poor, it is the path to
anarchy. The rule of law cannot survive in the absence of a properly
functioning system for the administration of justice. The people need
to reclaim the judiciary by having it restructured in accordance with
the needs of the common people.
These considerations and concerns have prompted us to take this first
step of calling this National Convention on Judicial reforms. All
people’s movements, consumer organizations, and indeed all
organizations and individuals working on any issue of public interest
are invited to attend this 2 day convention. We hope to initiate the
discussion on all the above issues relating to the functioning of the
judicial system. We hope that this convention will kickstart the
process of forming a national campaign organization and begin a
national campaign on this issue.