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Reforming India’s public institutions

Chief Justice of India K.G. Balakrishnan’s recent letter to the Chief Justices of High Courts requesting them to review the performance of all subordinate judges at specified stages in their careers and to retire unsatisfactory judges early is a positive development and is of a piece with internal moves in other public institutions. The letter may also signify an overdue shift in the ethos of India’s public institutions that have, for six decades since Independ ence, maintained power and control not over colonial subjects but over the very citizens who legitimate them and fund them. The CJI’s letter complements other procedures and intentions. First, procedures for the review of judges’ performance have already been established by judicial precedent; secondly, the Union Cabinet is considering legislation to create a National Judicial Council, which will have powers to investigate allegations of judicial misconduct. The CJI’s letter may not engender quite the public confidence that he and many others presumably intend to create, especially as 39 judges including members of the senior judiciary currently face serious allegations of financial and possibly judicial impropriety, and there is disquieting anecdotal evidence of corruption among judicial officers in several States.

Nevertheless, in the wider context, the CJI’s letter is significant. Enormous damage has been done to India by the maintenance of largely unreformed colonial institutions. Widespread reform is needed, but there will be major obstacles in the form of entrenched bureaucracy, powerful elites, and vested interests who have suborned the system to their own ends. A colonially-designed administration cannot serve the citizens of a contemporary republic, and so institutional reform is all the more important to ensure transparency and genuine public accountability. A cruel irony lies in the fact that India’s former colonial ruler, the United Kingdom, has radically transformed its own systems of civil and criminal justice over the last two decades. The English civil system now requires non-court procedures for settlement to be exhausted before litigation can start; lawyers must at the outset give clients reasonable estimates of time and costs for the various options. In the case of litigation, all documents must be pre-read. Only disputed points are taken to court. The system is not perfect, but it is a vast improvement on its predecessor. In India, a billion citizens deserve no less than wholesale improvement in their judicial and other public institutions.

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