Our judiciary’s accomplishments in terms of shaping constitutional law
have been sterling. However, if the credibility of the judiciary
as an institution is to be preserved, it is imperative that we also acknowledge and confront the unpleasant realities of our justice delivery system. It is in this spirit that I speak as a common citizen. I do so with the belief that it is better to be critical of our institutions of justice than to be cynical of the system which, I am afraid, citizens are increasingly becoming.
The citizen’s pain points:
The Supreme Court has interpreted the right to speedy justice as a part of fundamental rights and hence citizens have the right to experience reasonable justice in reasonable time. The meandering ways of the current system are totally incomprehensible to the citizen.
The citizen feels greatly offended that high-level connections and access to top lawyers confers special advantage to some citizens. It is galling to see the smirk on the face of a former IG of Police, SPS Rathore, after 14-year-old Ruchika Girotra committed suicide in 1990. It took 19 years, 40 adjournments and more than 400 hearings before the trial magistrate awarded a “guilty” verdict.
There are several public institutions which together are meant to assure an orderly society for the citizen to live in. Though their remits, jurisdictions and roles are different, the police, CBI, regulators and the courts system are all a part of what the citizen thinks of as the keepers of order in society. But when the police, the CBI and the judiciary are openly accused of corruption, the citizen becomes truly concerned.
The citizen thinks that both the responsibility and authority to solve related issues lie with the government and the judiciary. It is appalling to watch the Chief Justice of India shedding tears publicly, and to hear him narrate the constraints (probably valid) under which the judiciary is working. The citizen wishes that CJIs had done whatever is within their authority to improve the functioning of the courts.
Amartya Sen has argued in his tome, The Idea of Justice, that a theory of justice must include ways of judging how to reduce injustice as much as ways to advance justice. The complication is that people can share a strong sense of injustice, but on many different grounds. The lay public may not have any dominant or agreed reason for the perceived injustice. This was in full display as the issue played out of how to treat the juvenile in the Nirbhaya case.
Mr Sen quotes the telling example of a dispute among three children about who should be entitled to receive a wooden flute. One child argued that she was the only one of the three who could play the flute, so her utilitarian case to acquire one was supreme. The second child stated with pathos that she was too poor to ever buy a flute and that if she was awarded one, the world would acquire one more flute player. The third child claimed, without dispute, that he had shaped the flute out of hewn wood with his own hands, so was not his case to acquire the fruits of his labour supreme? All three are persuasive, each in his or her own way. Yet each one would feel a sense of injustice, irrespective of the decision taken. The modern-day flute issue resurfaces as a Cauvery Water Dispute.
Regulatory agencies clamour the most to be armed with more powers. The vanishing companies scam in the 1990s and the Ketan Parekh scam in the 2000s resulted in more powers being given to Sebi. Citizens’ expectations from regulators also increase as they are perceived to be given more powers. But for the citizen, the reality turns out to be different.
While there may well be a case to have more judges and judicial infrastructure, the citizen wonders how is it that there seem to be enough judges to decide upon the dispute between Kangana Ranaut and Hrithik Roshan, or whether Mumbai should have dahi-handi during Janmashtami!
All this leaves the common citizen bewildered and susceptible to the “Broken Window” syndrome (Fixing Broken Windows, George Kelling and Catherine Coles). Broken Window is a criminological theory that avers that if people see a broken window in a public building, they assume that somebody is fixing the window, whereas the reality is that absolutely nobody is fixing it.
Fixing accountability for broken windows is essential for securing order in society. The citizen’s dilemma then becomes, “Nobody seems to care, so why should I bother?” The total apathy of successive governments and the judiciary
has left the citizen destructively apathetic. We must consider this situation to be a great threat to public morality, democracy and justice in the future.
As a common citizen, I would not venture to suggest solutions, especially when they can be found buried among numerous reports already with the government. I close with the fervent hope that our leader(s) today will recognise the gravity of the issue facing our young democracy and feel sufficiently motivated to launch a “Swachh Insaaf” national programme.