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Of justice, justices and justicing

There are three grave pathologies that alienate the judiciary from the people. The curative pharmacopoeia of fundamental judicial reform to counter these comprise forensic democratisation, a process of social justice delivery and structural transformation of the justice system through innovative facilities for the have-not humanity. This trinity of recipes demands institutional creativity, procedural humanism, and joint action by the executive, the legislature and the judi ciary, inspired by the radical values inscribed in the Constitution.

The Indian judicature, if I may speak with euphoric excellence, is an instrumentality with grand stature and sober splendour. It has abundant independence sans democratic accountability. It has vintage value, a heritage implicit in swaraj culture. It has vast authority — too authoritarian, at times — to be trusted without stern restraints. It has disciplined dignity and decorum. It also has intelligently hand-picked, humanist personnel with a luminous social philosophy.

Judges need a paradigmatic code of august governance that blends integrity, ability, impartiality and compassion. Such a code will ensure majestic performance, liberal access to seekers of public justice, forensic openness and fairness in diction and action, freedom from precipitancy and generous tolerance of criticism.

What a rare project of judicial management law India can claim if only such a magnanimous code of justice administration were a reality.

One appeal is fair. But room for many such appeals is cruel, expensive and vagarious, as it is now. Never-ending litigative prodigality is a national waste. It involves a bizarre Bench-Bar extravaganza, loquacious advocacy, arcane ‘submissions’, systemic corruption, logomachic legalism, and dilatory and noxious features. This must end.

Fortunately, judges generally maintain a high standard of behaviour on and off the Bench. Even so, the number of delinquents is on the rise. Bribery, sexism, communalism, corruption, vanity, arbitrariness and like vices are no longer uncommon. Thus, colossal ignorance, indolence and utter indifference to writing judgments is sometimes evident. There is no commission of high status to enquire into a candidate’s fitness before an appointment is made. Nor is there a Performance Commission. Accountability, the basic obligation of a trustee of judicial power, is a desideratum that cannot wait. Its absence weakens the people’s faith in judicial justice which used to be held in high esteem.

The ‘robed brethren’, by and large, still command reverence from the community. Gresham’s Law of the inferior currency far exceeding the superior applies to the judiciary too, and the standards of the ‘robed brethren’ are suffering. Values are failing and cultural philistinism is vulgarising the hallowed Bench. A radical transformation that gives meaning to every mandate in the preambular prescriptions of the Constitution is the oath-bound obligation of the troika of paramount instrumentalities.

This consummation cannot wait any longer, in the face of protracted litigative terrorism, sky-high arrears, insouciant judges and disposal patterns that have gone haywire. If the Constitution is not to be a vain, verbomanic mantra but a non-negotiable verity and binding socio-economic reality of national life, the Bench and the Bar must make the suprema lex a fighting faith and an inviolable mandate.

Well over 60 years ago this nation vested ultimate interpretive and adjudicatory power in the unitive judicature. The Supreme Court is supreme not because it is infallible; it is infallible because it is supreme, subject of course to the other provisions of the ‘Great Charter’. And so, to betray, make illegitimate or bury any provision of the Constitution, covertly or overtly, will constitute grave dereliction of the country’s constitutional sovereignty.

Indian humanity, in its patriotic ambition, desiderates a perestroika, a dynamic Law India which will promote the work, wealth and happiness of the last, the least and the lost. Nearly half of our billion human beings are below the poverty line. Poverty jurisprudence is a matter of allergy to the fat-salaried Bench and the high-earning Bar. The generous rights and promises and duties textually underscored in Parts III, IV and IV-A are largely enforceable through the system of courts. For this to happen for the humblest human, we need a process of forensic democratisation.

The Supreme Court of India is the sentinel on the qui vive, and its writ power is a source of people’s hope, not despair. The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by, wrote Benjamin N. Cardozo. So the issue is whether the judges have a burning faith in the socialist secular democratic fundamentals. Therefore, the people of India must awake and arouse in militant mode public opinion to save the soul of the Constitution.

According to Brodie Thomas Jefferson, in the United States, “Judges by their constitutions are naturally divided into two parties. 1. Those who fear and distrust the people and wish to draw all powers from them into the hands of the higher classes; 2. Those who identify themselves with the people, have confidence in them, cherish and consider them as the most honest and safe, although not the most wise depository of the public interests.” Forensic democratisation demands glasnost and perestroika, transparency and accountability, vis-a-vis the judiciary.

My concern is for the Himalayan arrears of dockets, civil, criminal and constitutional, accumulating aggressively at each level and adding like an avalanche to the backlog.

People want local justice, summary procedures, early finality and quick execution of decrees and orders. But our procedure code is exasperatingly supererogatory. And once a decree is passed, the difficulties of the winning litigant begin in protracted execution proceedings. All this must be scrapped and substituted with summary simplicity. We may innovate and experiment with evening courts, itinerant courts, circuit benches, dispute settlement organs, quick arbitrations, conciliations and socially fruitful reconciliation.

It is alarming to note that arbitration, meant to simplify matters, is now the victim of a terrorism syndrome. For instance, the longevity of arbitration is anfractuous. Moreover, unpardonable cupidity, phenomenal prolixity and expenses have been woven into the innocent arbitration process. And what an outrage it is that judicial arbitrators supplement their incomes by means of reading fee, writing fee, conference fee and other such obnoxious money-making inventions in every dimension of arbitration. This horror of procedure must suffer seppuku. It is the opium of arbitral justice, indeed.

Mere numbers of judges creates only a Parkinson’s Law illusion, a remedy that aggravates the malady. In practice it is made worse by the Peter Principle. More tiers upon tiers of courts without radical simplification of procedures, streamlining of appeals, revisions and reviews and other methods of curtailing waste of judicial time, are fruitless pretences of reform.

I conclude by adapting some observations from The Brethren in the humble hope that our opulently paid parliamentarians will remember the poor and reform the Indian justice system.

The State Supreme Court, the highest court in the land, is the final forum for appeal in the American judiciary. The court has interpreted the Constitution and has decided the country’s preeminent legal disputes for nearly two centuries. Virtually every issue of significance in American society eventually arrives at the Supreme Court. Its decisions ultimately affect the rights and freedoms of every citizen — poor, rich, blacks, Indians, pregnant women, those accused of crime, those on death row, newspaper publishers, pornographers, environmentalists, businessmen, baseball players, prisoners and Presidents.

It was Warren E. Burger, who was Chief Justice of the U.S. Supreme Court, who wrote thus: “A court which is final and unreviewable needs more careful scrutiny than any other. Unreviewable power is the most likely to self-indulge itself and the least likely to engage in dispassionate self-analysis… In a country like ours, no public institution, or the people who operate it, can be above public debate.”

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