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Some inconvenient truths

Law is the business to which my life is devoted, and I should show less than devotion if I did not do what in me lies to improve it, and, when I perceive what seems to me the ideal of its future, if I hesitated to point it out and to press toward it with all my heart.

— Oliver Wendell Holmes, ‘The Path of the Law,’ in “Collected Legal Papers”*

After 60 years of Independence, the Indian justice system still remains ‘untouchable’ and ‘non-approachable’ to the vast have-not humanity of the country. This is true at the level of the trial court, the appellate court, and the superior tribunals with binding finality and constitutional supremacy. The performance of this great constitutional instrumentality is in need of a transformation. The powerful words of Justice Oliver Wendell Holmes persuad e me to undertake a moderate critique, with deep reverence to the high Indian judicature, of certain facets of public concern.

Everywhere, docket arrears are escalating. Judges clamour for more members, more perks and status-oriented facilities. Overall litigative expenses, court fees, lawyer’s fees and incidentals are mounting. Court judgments are a gamble from deck to deck. Even minimal interlocutory proceedings go on interminably, with arcane supererogatory verbiage, prolix adversarial advocacy and sluggish, leisurely hearings and disposals. In delivering the final conclusions, the system exhibits procrastination or precipitancy. Fair expectations of justice are marred by inevitable frustration of faith in judicial remedies.

Two more major maladies have crept into the process, which tend to weaken the efficiency and glory of the judicature. One of them is corruption, not uncommon in the bureaucracy and political community but till recently rare in the judiciary. Currently, with the aggressive invasion of materialism, even the robed brethren have been robbed of their moral resistance. As yet it is minimal but there are ominous signs of expansion. Even the cover of “contempt power” and statutory protection of judicial immunity are pressed into service to avoid exposing judicial delinquency. Public opinion must rage against this vice.

The second deviance is the misuse of indiscriminate, ill-defined ‘contempt’ jurisdiction flooding the courts with contempt petitions. Not even truth is allowed as the defence. What is forgotten is that a party to the accusation, that is, the judge himself, can hardly be fair to the accuser since no person, save a superhuman one, can be judge in his own cause.

But the courts, when it suits them, suffer from amnesia of established maxims of fiat justicia. Lethargy in court and indolence in disposal are chronic forensic evils. It is good to remember the great judge Felix Frankfurter who said: “Judges as persons, or courts as institutions, are entitled to no greater immunity from criticism than other persons or institutions. Just because the holders of judicial office are identified with the interests of justice they may forget their common human frailties and fallibilities.”

An eminent U.S. judge, Hugo Black, observed, wisely and truly, what realism tells us daily. “Judges are not essentially different from other government officials. Fortunately they remain human even after assuming their judicial duties. Like all the rest of mankind they may be affected from time to time by pride and passion, by pettiness and bruised feelings, by improper understanding or by excessive zeal.”

Although our republic is a federal one, our judicial system is unitive. This strengthens the integrity of the nation and the authority of the courts. But to our misfortune, the pluralist hierarchy of the judicial structure provides for an excessive obesity of decks upon decks, making finality of adjudication distances away from the mortal litigant. The ultimate decision itself being unpredictable, the fate of each case varies from court to court. In our poor country this costly dilatory uncertainty is de facto denial of justice — unless we streamline the process, reduce the number of appeals and reviews and offer free legal services to the weaker sections as an easy and competent facility.

Briefly presented, the problems of justice, justicing and justices are, as adapted to the judiciary, Parkinson’s Law, Peter Principle, pathological precipitancy and pachydermic procrastination in the judicial process, indifferent to the appalling areas of cases at every stage of the system. Money, big money, gains the visa to the Everest of Justice.

Man, the little man, becomes diminished in securing relief because of the high price of adversarial access to legal justice.

A creative, curative, curial pharmacopoeia is perfectly possible through a comprehensive, simplified judicial code, amending the Constitution with an extensive court chapter. It has become commonplace to clamour for more judges as a panacea for docket arrears, although the strength of the judiciary at every level has considerably increased over the decades. Slow disposals and a slew of judges disprove the numbers therapy. The quality of judges, their sensitive social philosophy and purposeful strategy, the absence of any check on lazy and indisciplined waste of court time in the name of independence and lack of institutional accountability, need constitutional correction.

Regrettably, in the selection and elevation of judges, communal, political, nepotistic, regional and other influences often creep into the secret process of handpicking by a collegium which is not accountable to any instrumentality, has hardly any training in business management or criteria for selection after due investigation about candidates.

What we need first and foremost is a Commission for the appointment of judges on a socially sensitive, utterly impartial, democratic and scientific basis. The political Executive by itself cannot be trusted with the extremely important task of choosing superior court judges. Nor is the discovery of a solely seniority-based collegium a fine innovation. Its performance so far has left much to be desired and it is often a riddle wrapped in a mystery.

Another reason for disposal delay and litigative prolixity is a lack of communication between the executive and the judiciary. Humanity, not legality, is social justice.

(*New York: Harcourt, Brace and Company, 1920, Page 194.)

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