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Thursday, 21 January 1999

More, Not Less-Improving the Delivery of Justice


(Originally appeared in the 1990s in the Times of India, as published in M. D. Nalapat's book "Indutva", Har-Anand Publications, 1999)


From Singapore to Chennai takes less than three hours, and yet
it is a universe away. At Changi, the staff are courteous and
efficient; the floors are clean. Anna airport, despite its interiors,
has the run-down appearance of an addict. Those at the snacks
counters take longer to serve than to prepare the food, while
there is litter everywhere. Interestingly, both at Anna and at
Changi, many of the workers are Tamils.

Excelling Abroad
Inside India, the people of this country appear to be among the
dirtiest and least organised in the world. Refuse gets thrown
from car windows, streets are unusable because of the filth, and
work is the first casualty of any occurrence, whether a
demonstration or a death. And yet, when these same laggards go
abroad, they excel. In Britain, while other ethnic groups have
largely remained part of the underclass, those from India have
thrived. In the US, emigrants from this country do better than
any other population segment.

The blame for India’s poverty lies not in our genes but in the
laws and their implementation. Aware of the agility and potential
of the Indian mind, both the Mughals and the British sought to
cripple it in a welter of regulations. Almost any productive
activity became a criminal act, so much so that after generations,
initiative and even intelligence faded. Since 1947, the country has
largely been ruled by a family that is European in all but
nationality. As ta result, the system of regulations continued,
with new ones being added. It was only in the brief periods of
Indian rule (as with Lal Bahadur Shastri in 1964-65 or Narasimha
Rao during 1991-96) that a small shrinkage took place in this
web. As for Deve Gowda, he is being handicapped by his 
dependence on the Congress party, which to this day proudly
flaunts its servitude to the Nehrus.

However, in the recent past many of the Supreme Court’s
judgements have shown that a pro-active mindset can convert
even Indian laws into instruments of mass betterment. During
the tenure of Chief Justice Venkatachelliah, the judiciary
reinforced its independence of the executive by shedding
restraint in chiding the latter for wrongdoing. He did not spare
his own brethren, promoting a policy of transfer of judges, so
that the pools of judicial thinking did not stagnate into vested
interest. Venkatachelliah clearly recognised that those who
enforced the laws needed to be subjected to their rigour. Such an
approach needs to continue, so that both transfers and dismissals
are used to ensure that judges do not themselves fall prey to
temptation.

The policy of acting as a check on the excesses of the
executive+including the political class—has been continued
with distinction by Chief Justice Ahmadi. There is no doubt at
all that the Venkatachelliah-Ahmadi revolution will be continued
by Justice Verma, who is next in line after the present Chief
Justice. However, progress means new approaches, not just
continuing with more of the same. While bringing errant 
bureaucrats and politicians to justice is a necessary task of the 
judiciary, it is not a sufficient one. Indeed, it is ironic that there
is an outcry about judicial "activism" in a country where judicial
processes move at an arthritic speed. What is needed is much 
more activism, so that cases get disposed of in years counted in
the low single digits, rather than in decades as now.

Thanks to the slow process of justice in India, it is likely that
more economic value has been lost than by the entire excesses of 
foreign rule. Many individuals file cases not to get a decision, but 
to avoid one. Thanks to a liberal policy on adjournments,
decades pass before cases get decided, even in the lower courts.
During the interregnum, assets get neglected and uncertainty
kills initiative. There should be an estimate in each proceeding
of the financial costs involved in the many delays in decisions.
Once shown such figures, judges may not be as willing to grant
adjournments, at least in cases involving property and other
assets that could depreciate as a result.

Time Limits
There is definitely need for extensive judicial reform. However,
this is not of the kind that certain politicians are contemplating,
of halting the enforcement of laws on the political and bureaucratic
elite. Rather, they should be focused on areas where colonial
procedures have made the law a nightmare for the poor and the
honest. There is no reason why an Indian should not do as well
in Delhi as in Denver. What is needed is to make the system here
as transparent and fair as it is in Denver, Berlin or Singapore. A
beginning would be to set clear limits on the length of time
needed to decide cases. It should be one year in the lower courts,
one year in the High Court, and the same period in the Supreme
Court. In case there are delays, the judges concerned should be
made answerable, including in the awarding of damages against
themselves.

Apart from clear time limits on the disposal of cases, the
present system of omnibus courts needs to be replaced with one
that has several parallel types. For example, commercial matters
can be disposed of by a court where the bench has specialised in
such matters. There have been suggestions that such courts
should have on the bench former practitioners in commerce.
While this may not be necessary—after all, a judicial mind is
trained to evaluate possibilities in a multitude of fields—it may
be desirable to have a panel of experts to help guide the
deliberations of the judges.

Specialised Courts
Rather than economise on the number of judges, there is need to
increase their strength, though not by creating more omnibus
courts. Instead, specialised courts in commercial, administrative
and other mattes should be set up, whose procedures will be
subject to strict time limits and whose deliberations will be in
open court. The Supreme Court can hear final appeals from all
these courts, though even here the right of appeal needs to be
very sparingly granted. That the higher courts hear a case should
be the exception rather than the rule. At present, far too many
cases go through the entire gamut of judicial procedure, from a
city civil or criminal court right up to the Supreme Court.

Rather than choose judges behind closed doors, the entire
process of selection of individuals to the bench—including
promotions—needs to be made transparent. As in many other 
experiments in democracy, the United States provides a model
to follow. India too should initiate the practice of public hearings 
when judges get selected. In this way, objections can be recorded 
and alleged blemishes come to the surface. While the selection
should be left in the hands of Judicial Commissions rather than
of politicians, the procedures should be public. After all, 
individuals without dark secrets have no need to fear scrutiny.

The judiciary should not be in a position where different standards 
get applied to it—for example in comment or scrutiny—than to 
politicians, bureaucrats or journalists. Democracy implies a
system of checks and balances. Any attempt to create a cocooned
base of authority fosters the danger that such unchecked power
may sometimes get misused. Indeed, judges should welcome
being themselves evaluated by the public, for such scrutiny can
only enhance their performance and remove some of the ills that
infect the Indian judicial system.




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