Sanjeev Sanyal, a member of the Economic Advisory Council to the Prime Minister publicly asserted that the Indian judicial system “is the single biggest hurdle” to achieving the goal of 'Viksit Bharat (Developed India). If he had studied economics with some intensity, he would have found this sentiment in a celebrated book of 1789 titled 'The Theory of Moral Sentiments':
“If [justice] is removed, the great, the immense fabric of human society, that fabric which to raise and support seems in this world if I may say …..must in a moment crumble into atoms.”
These words about the critical importance of a stand-alone justice system are the words of Adam Smith, the father of modern economics.
'Viksit Bharat', it is presumed, refers to the economic progress of this country. For a nation's economy there is a Ministry of Finance, a Ministry of Commerce and many other institutions dealing with various aspects of the economy. The Reserve Bank of India controls and oversees monetary policy. There was also a Planning Commission once upon a time based upon the Soviet model which successfully transformed Russia's agrarian society to a military -industrial powerhouse.
Constitutional courts, however, are independent institutions. They exist as impartial arbiters of the balance of power between the different wings of the government, ensure the rule of law and are the protectors of the fundamental rights of their citizenry. The economy is not the remit of the judiciary. That's why nowhere in Adam Smith's classic, 'The Wealth of Nations' or in any of the classics in economics is a role assigned to the judiciary for fostering an economy.
On Trivialities Of Honorifics
Let's deal with the trivialities which were addressed. Yes there is a practice of addressing judges as 'My Lord' or 'Your Lordship'. It is derived by practices of the courts in the Commonwealth nations which has its origin in the United Kingdom. It continues to be used even in the United States with the variation 'Your Honour'. The petitions use the expression 'prayers' in the UK, USA and the legal systems across the English-speaking world. There are resolutions of the Bar Council of India, which allow you to address judges as 'Sir' and there are several judges who encourage the usages of 'Sir'. It does not signify anything more than a respect for the office of the judge and the recognition of a court's authority.
Seriously, does the United Kingdom, Canada and Australia face the absence of 'Viksit' by the usage 'My Lord'? Or does the United States lose its $ 30 trillion economic supremacy because of the use of the expression 'Your Honour' in its courts?
Claps In Social Media
There is a problem in debating with Sanyal on this issue in the age of social media. Social media trivialises discourse, exchanges serious debates with sound bites, and substitutes reason with raucousness. And the fundamental problem with it is the absence of depth of thought and analysis.
Long Ignored Judge To Population Ratio
The criticism of the pendency of the cases cannot be reduced to a facile oversimplification. An in-depth research into the difficult situation of pending cases will reveal a complex array of facts. The first and foremost reason being that India has one of the lowest judge to population ratios in the world. The following statistic would reveal the colossal and humanely impossible task faced by Indian judges:
COUNTRY | JUDGE PER MILLION POPULATION |
India | 15 |
USA | 150 |
UK | 51 |
Europe | 220 |
Australia | 41 |
Sanyal Canada | 60 |
New Zealand | 52 |
Japan | 29.5 |
An average Indian judge has to work 10 times that of a USA judge and 14 times that of a European judge to maintain disposal parity. While the economy is not the remit of the judiciary, maintaining the judge to population ratio is certainly the constitutional duty of the government. Yes, that's the mandate of article 39A of the Constitution.
On Court Holidays
By the way, the United States Supreme Court actively works for about 180 to 200 days a year. The UK Court works 188-189 days a year. There is rationale for this. Quite unlike the government memos, writing judgements involves reading briefs, conducting legal research, collating and ratifying the research, addressing rival oral arguments, often dealing with the written arguments as well. Finally comes the writing of the judgment on a complex array of facts and law. This requires time, space and a release from the 10:30 a.m. – 4:00 p.m. courts hearing schedules. Most of the judges pass orders on every matter dealt by them before they leave their offices, most often after 8 pm and beyond. Writing judgements is not a mechanical process and is one of the most difficult of the intellectual process as it is for this reason that you find judges always sitting with their stenographers in the musty chambers of their houses even on holidays.
Critical Role Play Of Governments In Effective Justice Delivery Systems As Per Rule Of Law Index
If at all Sanyal is keen on qualitative and quantitative justice, would be better to refer the WJP Rule of Law Index 2024 published by the World Justice Project (WJP). India currently stands at 79th rank on the Rule of Law Index. We have reached this state of affairs, not for the fault of the judiciary alone but as the result of a substantial role played by the government.
The primary conceptual framework of the WJP's Rule of Law Index 2024 is comprised of these broad factors:
Factor 1 Constraints on Government Powers | 1.1 Government powers are effectively limited by the legislature 1.2 Government powers are effectively limited by the judiciary 1.3 Government powers are effectively limited by independent auditing and review 1.4 Government officials are sanctioned for misconduct 1.5 Government powers are subject to non-governmental checks 1.6 Transition of power is subject to the law |
Factor 2 Order and Security | 2.1 Crime is effectively controlled 2.2 Civil conflict is effectively limited 2.3 People do not resort to violence to redress personal grievances |
Factor 3 Regulatory Enforcement | 3.1 Government regulations are effectively enforced 3.2 Government regulations are applied and enforced without improper influence 3.3 Administrative proceedings are conducted without unreasonable delay 3.4 Due process is respected in administrative proceedings 3.5 The government does not expropriate without lawful process and adequate compensation |
Factor 4 Criminal Justice | 4.1 Criminal investigation system is effective 4.2 Criminal adjudication system is timely and effective 4.3 Correctional system is effective in reducing criminal behaviour 4.4 Criminal system is impartial 4.5 Criminal system is free of corruption 4.6 Criminal system is free of improper government influence 4.7 Due process of the law and rights of the accused |
A reading of these factors reveal areas of concern on the government's role in India's justice system. The government's footprint is visible on every metric. These four factors require a serious and detailed audit. This cannot be deflected. Nor can it be any longer camouflaged as a problem of the inability of the judiciary to deal with the deluge of litigation.
For instance, the government needlessly engaging in adversarial litigation when none is required. Engaging in frivolous appeals has not been remedied for the last three decades or more. The languishing prosecution, filing of false cases, governments endlessly seeking adjournments are just a tip of the iceberg.
Ignoring Independence: Skewing The Debate
The Rule of Law Index deficit and our abysmal 79th position is largely the work of the executive and the legislature by dilution of human rights. The government cannot shirk its responsibility in failing to bring lawyers who have been pro-liberties to the benches of the High Courts or elevations into the Supreme Court. Even cursory readings of the extensive literature, journalistic pieces and human rights research papers of recent years clearly show a serious erosion of human rights in India, an overweening executive and consequent loss of judicial independence. It would do well to read article 50 of the Constitution which enjoins; “the state shall take steps to separate the judiciary from the executive.”
The foundation of our constitution-borne out of 200 years of colonial state operation and 100 years of independence movement-is independent judges. For understanding this you need to refer to Pandit Jawaharlal Nehru's exhortation to the Constituent Assembly on 24th May, 1949:
" It is important that these judges should be not only first-rate, but should be acknowledged to be first rate in the country, and of the highest integrity, if necessary, people who can stand up against the executive government, and whoever may come in their way."
Scientific Response: Need Of The Hour
Justice delivery, both in quantitative and qualitative terms is an extremely complex issue, involving several players including substantially the government. It requires a serious study of a manifold set of factors and requires an array of complex responses. The government or its spokespersons do not have the luxury of being arm chair critics. That's because the government is an active participant in the mechanics of it. 46% of court cases in India involve the government (Central, State or Local bodies) according to the Ministry of Law and Justice.
The issues need redress. However, it calls for a scientific debate and not an inane social media sensationalism. Sanjeev Sanyal must tread the correct and surely the difficult scientific path. For that, he must understand its ground rule so incisively put by Michael Crichton:
“The work of science has nothing whatever to do with consensus. Consensus is the business of politics. In science consensus is irrelevant. What is relevant is reproducible results. If it's consensus, it isn't science. If it's science, it isn't consensus. Period”.
Author is Senior Advocate, Supreme Court of India. Views Are Personal.