ABOUT: Some of India’s landmark legislations such as MGNREGA, insurance for all, direct benefit transfer, education for all and health for all, have been instruments of bringing social equilibrium. But with crores of cases pending in Courts across the country, delayed justice continues to deny justice to the common man. How could law become an instrument of social justice? Ranjeev C. Dubey, Managing Partner, N South, Advocates, outlines what must be done to bridge the gap between the rich and the poor over the next 25 years.
Here is a core eternal truth: removing the symptoms of an ailment is not the same as curing the ailment. India’s main problem is that in the past two decades, we have acquired a peculiar fascination for symptomatic treatment. When women are raped in cars, we ban solar film on car windows. When air quality declines, we ban half the cars from plying the streets on particular days. When corruption spins out of control, politicians fight pitched battles with the police on the streets. Lost in the symbolism and emotional catharsis from such actions is the fundamental fact that everyone rises to the incentives of his/her environment. At the root of the vast majority of our ills lies our wanton neglect of a key instrument of social equity, equilibrium and justice: the judicial system.
This is actually quite obvious. If rapists, polluters and scamsters were convicted faster than they could profit from their felonies, there would be little incentive to engage in criminality. You can’t build a great country by hysterically protesting on the streets, stripping crooks naked and parading them on donkeys, or spewing venom on TV. You do it by building great institutions that efficiently pursue the objectives for which they are designed. Almost every society that has identified social equilibrium and justice as objectives, has hastened to establish, and carefully preserve, an efficient judicial system.
Yet the fact remains that the judiciary as an institution is deeply troubled. At its worst, it is an extortion racket equal to anything the provincial police station can conceive of. For the most part, it is overburdened, unable to function, gridlocked and logjammed. As former Chief Justice H.L. Dattu so candidly acknowledged, India has more than three crore pending cases. One estimate claims that at current disposal rates, we will need 466 years to clear the backlog.
But there is more to increasing judges’ strength than appointing more judges. It is also about providing them the real estate, infrastructure and support staff they need to function. I understand there has been a policy decision to increase judges’ strength by 25 per cent. But this will barely keep up with the ambitions of an expanding economy: it will not make up for the neglect of the past.
Can judges’ strength be increased to five times its current level? No doubt, it’s a great challenge. Where do we get so many skilled judges? After all, it’s productive assets we need, not well meaning, decent folk who hope to learn on the job. I get plenty of CVs from aspiring lawyers emerging from the hallowed portals of India’s leading law schools: most don’t have employable skills, although they do have great financial expectations. Skill deficit is a complex countrywide phenomenon. All I can say is this: if you want great skill, you better have a great budget. The world is what it is. And money is never enough. You have to catch talent young. A lawyer with 10-15 years experience can switch jobs and become a judge because he has a career expectation of another 20-25 years. Once he has been 20 years a lawyer, he is too successful, too set in his ways and doesn’t have a career progression deep enough to justify the switch. Bear also in mind that you will have to train him for this specific role. You will need to build great training institutions, much more intensive than the short workshop routines you have now.
What will you train these judges to do? The era of the generalist judge has passed. I have 35 years of legal experience, but I don’t even pretend to understand tax laws or intellectual property rights (IPR). At the rate we are changing our regulations, in a few years, I fear I wont understand capital markets either. We need intense HR planning for judges. How many do we need for which jobs? Getting this product mix right isn’t rocket science, but it isn’t our usual perfunctory gloss-over-details claptrap either.
We need cooperation from our lawyers, too. A vociferous minority of lawyers can be particularly perverse. “I’m too poor to buy a computer,” you might hear one say. “My fundamental right to practise this noble profession stands impaired if everything goes online.” “It is imperative that I be present at my uncle’s cousin’s brother-in-law’s funeral,” another may insist as he seeks postponement of a hearing. Conflict aversion then becomes the road to institutional self-destruction.
This brings me to discipline and intellectual clarity. I have lived through the deterioration of the legal system in the late 1980s and 1990s, when time after time courts took to unsettling long-settled law in some elusive quest for targeted justice for individuals, subjectively defined through the prism of the judge’s ideological bias. What we have now is a legal system in which I as a lawyer cannot definitively tell a potential client what the court will decide in the face of any given set of facts, or how long it will take, or what it will cost to get that decision. The situation is truly ludicrous. We need certainty of law a good deal more than we need justice for each individual based on some misguided notion of compassion.
Fixing this has two elements. First, we need our judges to think only of the big picture. Judges are here to apply the law to the facts, not deliver individual justice to the downtrodden. It’s a cultural shift, easily implemented if it is clearly understood. Second, we need to arm judges with a definitive understanding of the law. All this takes is IT and competent law clerks. If a judge can punch a couple of buttons and get abstracts of all cases decided on a particular point of law in the last 60 years before him, he will know what law to apply. The rest is common sense, and that has never been lacking.
I am overwhelmed by the irony presented by the judicial system in India. Here is a hallowed institution that has all but disintegrated in substantial measure. We observe this downfall as mute spectators even as we continue to look to the judiciary to rescue us from a predatory state. The fixes are easily understood and easy to apply, but there is no administrative will to make the changes. Even where administrative will exists, political support is absent. The people want justice, but there is no popular movement on behalf of civil society agitating to enforce the fixes. Topping all this is the greatest irony of all: we want the best judiciary possible, but we haven’t the slightest interest in addressing any of its existing problems. In this, we only prove the greatest eternal truth about Indians: we are superb at strategy, we just hate to implement our rhetoric.