This is the story of a big ship. All Indians are in it. Its job is to steer and guide India through dark storms and turbulent seas. This carrier is floundering and coming across as rudderless and increasingly restless. It is the restlessness of failure. If this ship sinks, it will take all Indians with it.
This ship is the Supreme Court of India. The country’s apex court is failing the people of India and a large part of the blame must be placed at its doors. Instead of unleashing the political power of a nation rearing to go, our legal leaders and eminent jurists have collectively reduced national legal dialogue to petty politicking. The Chief Justice of India (CJI) wept publicly claiming he was overwhelmed by backlog. What are Indians supposed to do? He is the compass of Indian justice – in any other democracy this kind of behaviour would be unthinkable.
Over the past few weeks, a circle of concerned Indians from all walks of life including government officials have shown they are keen to assist this ship in turmoil, in particular the issue of backlog. They have one goal – they want the Supreme Court to course-correct and make it the grand and robust institution it must be. Reading materials including peer-reviewed work has been discussed. Journalism is a public good and towards goal, this piece must be seen as a contribution to a very necessary national dialogue.
I tweeted last week asking the Supreme Court if fear of scrutiny was the reason it had stopped posting data on judicial backlog on their website. The data was available in Court News on their website. The tweet touched a nerve – people were agitated. They were unimpressed with judges bickering about promotions and post-retirement placements. Miscarriage of justice had entered the language in a very different way from its original meaning. When that happens the damage is serious.
People wrote to me privately and responded to the tweet with suggestions of what can be done to help the Supreme Court deal with the backlogs. Some were angry the country’s apex legal body was looking into Jallikattu and Dahi Handi and just about every social practice and cultural tradition in the country when its own accountability was slipping. In a democracy people have a right to question their institutions. Responsible voices on social media will do so increasingly. They will influence national legal dialogue and that is a good thing.
As a concerned citizen and a reporter, I want to know as well. What has the Supreme Court done to correct itself? For that question to acquire gravitas, the Supreme Court must engage with all sections of society to tell us what they are doing. They may even have to accept they have lost their moorings. The Supreme Court’s own backlog of cases has tripled from 20, 000 cases to 60, 000 cases even as they decry the dismal performance of lower courts where the situations is worse. Why can’t the Supreme Court lead by example, set its own house in order beginning with being accountable?
A pet peeve for lack productivity is paucity of resources and the resultant gruelling hours. Millions of Indians pull 14-hour-days under harsh conditions, they enjoy no perks and have shorter vacations. What is different about the work of a Supreme Court? Is it normal to take off when matters of national importance need swift attention disposal?
As for resources, a back of the envelope estimate shows that the appointment of a new judge and accompanying paraphernalia costs Rs. 10 crores in addition to Rs. 5 crores in running costs. I have worked in many different organisations and settings around the world. Here’s the bad news – there will never be enough money and resource in any organisation to do everything they want. The corpus of funds will always be limited and the workload will grow exponentially if mismanaged.
And here’s the good news. Efficiency can be achieved by increasing productivity. This means more output and reducing demand. Increasing production is an asset in any situation. In the context of the Supreme Court, this means keeping a sharp focus on what is necessary (avasyam) and ignoring the unnecessary (anavasyam). It means not responding to just about anyone and anything that comes knocking on the door. In the United States, for example, the Supreme Court only accepts some ten per cent of cases seeking their intervention.
There are some 12,000 courts in India. In addition to the Supreme Court, there are 24 High Courts, 3,150 District Level Courts, 4,816 Munsif/Magistrate Courts and 1,964 Magistrate II and equivalent Courts. Only six of the High Courts (Calcutta, Delhi, Mumbai, Madras, Himachal Pradesh, Jammu & Kashmir) have original jurisdiction which means if conditions apply civil suits can be directly filed in these courts.
A paper written for the 13th Finance Commission said judicial reforms remained largely outside of the root and branch liberalisation process India had embarked upon. People have started losing faith in the entire judicial system between because of daily errors and it us usual to hear conversations between litigants “…that they are not likely to reap the fruits of litigation during their lifetime,” the paper said.
There was no logic to keeping the administration of justice out of the reforms process but that is what happened. The results are there to see. Delays are chronic and eminent jurists have said India’s Justice Delivery System is cracking under the oppressive weight of delays and arrears. The average time for a civil case to be disposed can be anything between 8 - 12 years. Even the sturdiest ship can turn turtle and that is a real danger staring at us now.
People who have spoken up say reforms are not as complicated as they are being made out to be. Primo, there is an element of statutory law reform and there are three clear strands to reforming these laws. Cut out weeds that make legislation dysfunctional, rationalise, harmonise and minimise State intervention.
Secondo, legal reform and administrative law reform must move in tandem. Translated this means that the subordinate legislation in the form of rules, orders, regulations and instructions from ministries and government departments cannot be stand alone. It is no secret that hurdles to efficient decision-making come about through administrative law rather than through statutory law and bribery and rent seeking are fallouts.
Tertio, the final legal reform is what may be called judicial reforms, through faster dispute resolution and contract enforcement. These are not exclusively judicial issues. In multilateral trade disputes of which I have better knowledge, there comes a moment when the talks move to the political level. The work of the sherpas - who negotiate rolling texts – stops and country capitals take over. That is the nature of the beast. Judicial reforms of the kind India badly needs is in that league.
The modern world’s oldest democracy – Switzerland – has found a judicious way out of chronic political interference which is the bane of justice delivery worldwide. The Federal Supreme Court of Switzerland is situated in Lausanne, an hour by train from the capital city of Bern where other arms of government are housed. Lawyers and judges have told me this brings down after hours political interference and lobbying. This is not possible in India, but the message is salient. Eminent people including jurists tell us when fish rots, it starts from the top - they probably know what they are talking about.
Indians are watching. They need answers now and if social media is any indication, they are willing to participate in turning the ship back to where it should be headed. Is the government ready to take up the challenge?