At a time when the nation is reeling under mega-scam upon super-scam unfolding with unceasing regularity under the auspices of UPA2, it is hardly surprising that India ranks an abysmal 78th out of 97 nations covered by the World Justice Report on ‘Rule of Law Index 2012’. Clearly, notwithstanding the hosannas heaped on outgoing Chief Justices of the Supreme Court of India or the myriad High Courts, and eulogies sung for the incoming justices, the nations’ justice delivery system needs major reforms if we are to have credibility among the comity of nations. Former BSF chief Prakash Singh is among the experts associated with the Report.
Rule of law is imperative for citizens to enjoy equal opportunity, and the foundation on which a society combats corruption, violence, lack of opportunity, and other ills. India’s judicial system, however, is synonymous with frequent adjournments and liberal stay-orders, which ensure that almost every case drags in court for ‘n’ number of years. A division bench of the Supreme Court once observed that many petitioners take an ex-party stay order and do not seek disposal of cases they ultimately lose; yet the tendency by even higher courts to liberally grant stay orders continues unchecked.
On the positive side, the report notes that India – despite the current controversy over misuse of section 66A of the IT Act to arrest and harass dissidents on social media – has a strong tradition of respecting free speech and ranks 24th out of 66 nations. It also has an independent judiciary (rank 25th), a functioning system of checks and balances, and a relatively open government (ranking 1st among 16 lower-middle income countries and 25th globally).
It is the poor performance of public administrative bodies that impacts the rule of law negatively. The World Justice Report ranks the civilcourt system at 48 out of 66, largely on account of deficiency in access to justice and delays in processing cases, where India ranks third to last. Corruption is high (ranking 51st), and police abuses common. Crime, civil conflict, and political violence remain areas of concern.
It is high time that the judiciary enforces minimum discipline in the courts and decides upon some parameters for granting adjournments and stay-orders, which should be the exception rather than a norm. Here much of the blame devolves upon senior advocates who accept too many briefs to which they cannot do justice. Hence when they are inadequately prepared, or two cases get listed for hearing at the same time on the same day, depute juniors to seek adjournments. It is for the judges of the Apex and High Courts to deny these adjournments of convenience. This will also ensure that cases and arguments are heard on the basis of merit, and not because they are argued by certain counsel.
The Central Information Commission, it may be noted, grants adjournments only rarely. The higher courts have in recent years displayed a tendency to prioritise cases relating to Corporates or those tom-tommed by high profile NGO activists. These do not instill confidence in the public.
There has been a discernible whittling down of interest in Public Interest Litigations. For instance, three review petitions, including one from the Government of India, have been filed against the Supreme Court’s September 13, 2012 verdict that the Central and State information commissions should be headed by a former judge of the Apex court or Chief Justice of a High Court. Yet the Apex court has not yet set up a bench to take up the petitions.
The Supreme Court has also not shown any urgency to list important public-interest writs which have been pending for many years. In this regard, the Association for Democratic Reforms, an association of retired eminent professors of the prestigious Indian Institute of Management (Ahmadabad) has not been listed for hearing though it pertains to electoral reforms and thus affects every citizen of the country.
The overall Judicial disinterest in public interest issues has, as a natural corollary, resulted in a decline in its public esteem and the association of the institution with unsavoury wheeling-dealing. In the infamous Nira Radia tapes, there is an open allusion to a particular judge being ‘fixed’ with Rs 9 crore. When senior advocate Shanti Bhushan submitted an affidavit in the Apex court charging eight out of 16 former Chief Justices of India of having been corrupt; no one demurred and many said it was an underestimation.
On the flip side, it can be pointed out that while justice delayed causes frustration and despondency among the aggrieved parties, it is also true that in some high profile cases where dubious tactics were employed by powerful offenders, it was judicial delay that led to justice.
The most startling instance is that of young model Jessica Lal who was shot dead publicly in an illicit bar. The manner in which the trial court conducted the case so outraged the nation that the High Court took suo moto cognizance and supervised a fresh trial which resulted in the arraignment of the killers. Similar cases of justice dragging its feet include the Nitish Katara murder, Priyadarshini Mattoo rape-cum-murder case, Aman Kachru ragging-cum-murder case, amongst others.
The Uphaar cinema fire is an instance of delayed justice wearing out the families of the victims who could not overcome the power of a large corporate house. It shocked the nation that the Delhi High Court actually reduced the compensation fixed by the trial court for the families of the victims. The Supreme Court would do well to undertake some judicial introspection.
NitiCentral, December 2, 2012
http://www.niticentral.com/2012/12/time-for-second-look-at-rule-of-law.html