State of Justice in India Urgency of Int (1)

Nalini Kant Jha, “Sate of Justice in India: Urgency of Internal Reforms,” Indian Journal of Public
Administration (New Delhi), vol.48, no. 4, October-December 2002, pp.573-81;

State of Justice in India: Urgency of Internal Reforms

While judiciary still commands relatively more respect as compared to executive and
legislature for it has maintained, to a considerable extent, its independence and
professionalism,1 the process of institutional decay has nonetheless affected the
judiciary and especially the lower judiciary. To say the least, it is indeed depressing
and far different from textbook perceptions of justice. Qualities of fairness, efficiency,
trust, credibility and service are not evident in the way the system operates. On the
contrary, the state of justice in India to-day is characterised interalia by lack of
sensitivity to human suffering, open exploitation by intermediaries, huge arrears of
pending cases; costly processes and procedures and blind adherence thereto; glaring,
if not alarming, variance in the competence and honesty of judges; controversies
about appointment and transfers of judges of superior courts; ever-widening and
growing tentacles of corruption in the judicial system and the political executive and
legislators looking the other way.

2

These ailments cry hoarse suggesting that the

entire edifice of Indian judicial system is moth-eaten and its sudden crash imminent.

II

The transformation of the justice system into often an unjust system has several disastrous
implications for the society, polity and economy of the country. As Gladstone observes,
the proper function of a Government is to encourage the people in doing lawful acts and to
discourage them from indulging into unlawful activities, 3 and this can be achieved only
through swift punishment. But in the absence of State’s capacity to inflict punishment to
wrongdoers, the rule of law has virtually collapsed. In a system when the lawful pleadings
of even a highly educated person are turned down in an arrogant manner, victims of gross
injustice have either to rely upon the God, if they are believers, or to take recourse to extralegal mechanism for redress of grievances. As the courts have miserably failed to deliver
justice, there is a growing demand for gangs, which can enforce rough and ready justice.4

1

Moreover, India's justice system has emerged as the strongest and most
favoured ally and alibi of the terrorists operating on Indian soil, and of their sponsors

across borders.5 This fact clearly came into light, when the Indian Government
demanded the extradition of a Pakistani national, Maulana Masood Azhar, for his
alleged role in the attack on Parliament in last December. A spokesman of the
Pakistan Embassy promptly replied, "When you (India) had Masood Azhar in your
jails, why didn't you do anything then? India says it has been fighting terrorism for 20
years, why don't they take an alleged terrorist to trial ever? Give me the name of one
alleged criminal who you have tried?" The question is impossible to answer-except in
terms of the weak quibble that there have, in fact, been a handful of convictions. But,
with over thirty thousand killed in Kashmir alone-and nearly eleven and a half
thousand of these civilians-over the past decade, how is it that convictions have been
made in that State in just six cases; and, with one exception, all these have been on
entirely trivial charges?

6

This is truly extraordinary, particularly when it is

contrasted with the judicial response in other parts of the world, especially the
democratic West, where members of the legal profession stand strongly against
terrorism and organised crime, often at great personal risk. 7

The failure of the justice system has not only contributed to the breakdown of
the law and order in the country, but also adversely affected the economy of the nation. In
a large measure, the failure of justice system meant that no entrepreneur or businessman or
even ordinary citizen could rely on law courts to enforce contracts and agreements. The
undermining of the sanctity of contracts and agreements has had very debilitating impact
on investment, production and economic growth. As the personal experience of this author
goes, even the consumer courts, which were established, according to the Supreme Court,
to protect the helpless consumers from “the powerful business racket” 8 has in fact largely
turned in to “consumer victimization forums,” where mutually conflicting judgements are
handed out in similar cases in according with the whims and fancies of the presiding
officers rather than on careful consideration of facts and circumstances of the case.
To cite only one example, while in K. Ravindram vs. Singapore Airlines case
(CCJ, 1993: 405-407) the National Consumer Disputes Redressal Commission, New
Delhi, as well as the District Consumer Forum at Trichy in a judgement delivered in 1998
did accept, and rightly so, the crucial significance of recording of reporting of time by a
travel agent to avoid missing of flight by the air traveller due to negligence of the travel
agent, the District Consumer Disputes Forum of Pondicherry in Complaint no. 122 of
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1997 refused to accept the significance of reporting time to absolve a travel agent from her

act of gross negligence. Besides, the travel agent’s mutually contradictory statements in
writing about the complainant’s claim for refund of the amount were completely ignored,
notwithstanding the fact that the Indian Evidence Act mandates to reject the contention of
a party, which comes out with conflicting statements. A perceptive observer of consumer
cases therefore reports how airlines and travel agents are getting away with bad services
with judiciary siding with them.9 It is a different matter that if the air-traveller belongs to
the judiciary, the court promptly awards heavy compensation of Rs1, 25,000/ with costs
for relatively minor deficiency in service on the part of the Air line. 10 It is this attitude of
the judiciary that conveys the impression that “the judicial system exists only for judges
and lawyers.” 11

III

No doubt, the laws, the Government and the litigant public must own a part of
responsibility for this dismal affair of the Indian judiciary; the major cause of this is
attributable to the judicial machinery and its management for which the judges and the
lawyers are responsible. Unfortunately, hardly any political party or the higher
judiciary thinks it necessary to come out with a time-bound plan of judicial reform.
That is why, though many Law Commission and Police Commission reports have
eloquently made out a case for several specific and practical judicial reforms, no

effort has been made to implement these recommendations.
This is particularly surprising in view of the fact that while a victim of
executive excess can not only approach the higher executive authority; but also press,
legislators, courts, and human rights organizations; a victim of judicial highhandedness can only prefer appeal involving huge expenditure and enormous wastage
of time because the judges are shielded by a thoroughly undemocratic and colonial
power to stifle dissent and legitimate criticisms in the garb of preventing contempt of
courts. Unfortunately due to several reasons judicial mind is seldom exercised in an
appeal and the cry for justice of an appellant is normally ignored leading to his/her
utter helplessness. This can only lead to cynicism on the part of a victim of gross
injustice, who may decide not to approach any court during rest of his/her life, as
violation of one’s rights by a criminal or businessmen may be less painful than a
flagrant disregard of judicial norms in temples of justices.
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The reforming the Indian judiciary is, therefore, the need of hour. As the
judges are the most important, though not the sole, pillar of judicial system, reform
must begin with the system of appointment of judges. For, if persons adorning the
bench are not above prejudices and/or incapable of correctly grasping the issues of a
case under consideration, no amount of procedural safeguards or evidence will be
enough to bring culprits to justice. If a lawyer working in particular court, for

instance, is elevated to the bench in the same court or place, it would be extremely
difficult for such a judge to ignore pressures from his close friends and erstwhile
colleagues in the bar. He may therefore ignore the legally valid pleas of a victim and
virtually copy the pleadings of his former colleague representing the wrong doer. A
general law therefore needs to be enacted to prohibit the appointment of a lawyer as
judge in the same court, district, and town/city. The practice of appointing of High
Court judges belonging to the same State or province also needs to be seriously reconsidered.
As regards the process of appointment of judges, it is high time that the
Indian Judicial Services (IJS) is created as an All India Service under Article 312 of
the Constitution to minimise delays and varying levels of inefficiency in appointment
of judicial officers of the subordinate courts. Persons recruited to such a service after
adequate training and exposure should hold all the offices of the District and Session
judges. Only such a meritorious service with competitive recruitment, high quality
uniform training and assured standards of probity and efficiency would be able to
ensure speedy and impartial justice.
A fair proportion of the High Court judges could be drawn from the
Indian Judicial Service. While the executive’s role in the appointments of the judges
needs to be minimised to reduce the influence of the Government on the judiciary,
judges should not also usurp the power to appoint judges to themselves as has been
done by the Apex Court through its verdict of a nine-judge bench. As a consequence

of this verdict, there has been difficulty in choosing judges, differences of opinion,
causing embarrassment and disharmony, discontent and even estrangement. While
there was long complaint by the Bench and the Bar in the country about wanton
wasting of time, nasty tactics, collusive intrigues and selfish motives by the executive
in providing judges by prompt appointments, the situation today is worse, being
pathological,

personalized

and

marred

by

delays

though

not

always.12

4

5

The Constitution, therefore, needs to be amended to establish a National
Judicial Commission--consisting not only of the ‘robed brethren’, but also great
statesmen belonging to the ruling as well as the main opposition party, and foremost
social scientists and journalists of the land--to appoint the judges of the Supreme
Court and High Courts so that the process of selection may be more transparent and
open. At the same time, the Constitution of India must lay down qualifications for
appointment of Chief Justice as it has laid down for other judges of the Supreme
Court and High Courts. The valuable recommendations for reforming the selection
process and training system of judges contained in report of the First National Judicial
Pay Commission set up following judgement in the all India Judges’ Association need
urgent consideration by concerned authorities.

IV

The very fact the Supreme Court has arrogated to itself the complete power of
appointment of judges demonstrate the urgency of making the judiciary accountable
to the people, who are the ultimate source of every authority in the land and who
alone have “enacted and adopted” the Constitution. It is absurd to assume that in a
democratic society any organ of State should perpetuate itself without any degree of
accountability to the people as the ultimate sovereigns. Nowhere in the democratic
world have the executive and legislative been made so utterly impotent in matters
relating to appointment of judges and conduct of judicial proceedings. Art. 124 (4) of
the Constitution though provides for removal of a judge of the Supreme Court or High
Courts, yet as Justice Ramaswamy’s impeachment case has amply proved the Indian
Parliament in reality does not have the power to act as a court in such impeachment
trials. Under the present dispensation thus a judge is appointed solely on the
recommendation of the judiciary, and no judge can ever be removed in practice, no
matter how horrendous his conduct is or how inefficient his functioning is. The
continuation of such a situation can only lead to judicial terrorism and result in
unmitigated disaster to the governance process and society.
As self-promotion has become the main motive of the most of the judges
today, which leads to corrupt practices in the judiciary as in other areas of
administration, so judiciary too needs to be regulated by external vigilance. Constant

evaluation of the performance of the institution needs to be encouraged. Proper
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balance between judicial independence and the behaviour and conduct of judges
operating the justice delivery system must be maintained. To achieve this goal, it is
necessary to establish the National Judicial Commission as out lined above. The
Commission must be empowered not only recommend names for appointing judges of
the higher courts, but it must also be authorized to try and punish an errant judge.
At the same time, a workable internal mechanism, which is vital for
regulating judicial conduct, must be created. Impeachment is only an extreme
punishment. A code of conduct internally evolved and internally applied, which is the
core component of internal regulatory regime, can act as a supplementary to the
impeachment process.13 Self-improvement is a must for a judge in this profession, so
they must devote time to study and read the latest developments in the field. This is
necessary to retain the popular confidence in judiciary, as the societal perception of
judges as detached and impartial references is the greatest strength of judiciary. 14
But the greatest obstacle in ensuring transparency in and accountability of
judicial conduct is the continuation of a colonial and highly undemocratic law
concerning the contempt of court. As against India’s national motto, Satyameva
Jayate” (truth alone prevails), the law on contempt does not permit to plead the truth

of allegation as defence in contempt proceedings. And when truth is no defence to
contempt charge, corrupt judges can easily escape from exposition of misconduct. The
courts have thus come to regard it their legal duty to punish and deter any attempt by a
citizen to expose the rot in the judicial system. Self-interest has thus come to be
sanctified as a sacred legal duty by the judicial expansion to the power of contempt.15
But as pointed out by Justice V. R. Krishna Iyer, this often violates the freedom of
speech and expression guaranteed to the Indian people by Art 19 (1) of the
Constitution, which has also been recognized by Art. 19 of the Universal Declaration
of Human Rights and the International Covenant on Civil and Political Rights ratified
by India in 1977.16
In recent years, the law of contempt has therefore been liberalized in both
the UK and the US. In the UK, the statue has been amended on the recommendation
of the Phillimore Committee to provide for truth and the motive of public benefit as a
defence to a charge of contempt by scandalising. In the US, the courts have evolved a
more liberal standard of “clear and present danger” to administration of justice. Thus,
for example, when the New York Times characterised the judgement of US Supreme
Court on the recounting of Florida voted in last American Presidential elections of the
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year 2000 as “corrupt” and one, which “stole the election”, no action was initiated for
contempt because there was no clear and present danger to the administration of
justice.
The law of contempt in India must, therefore, be modified on the pattern
of American system to enable the press to report the judicial misbehaviour. Judges
must draw respect through their impartiality and competence and not with the help of
any special provision as other authorities of the Government such as civil servants,
police and military officers, and university teachers are expected to do. After all, they
too perform public functions, and it is equally important for their efficacy that public
confidence in them should also be preserved. But then it has been recognized in their
case that being human being they can err and also be corrupted. Therefore, the best
safeguard against their degeneration is their accountability to the people for which it is
essential that people should have the right to feely criticise them. The same applies to
the judges. There is nothing special about the judiciary that warrant a law that
provides that even a citizen having sufficient proof of a judge’s corrupt and biased
conduct and who is willing to face action for civil and criminal defamation cannot
accuse them of dishonesty. 17

V

One of the most important factors that have eroded the public confidence in judiciary
is its failure to deliver justice expeditiously, which has brought about a sense of
frustration amongst the litigants. A civil suit filed before the sub-court takes sometime
more than 20 years to reach finality. So people hesitate to bring matters before courts
and are often advised not do so and even by advocates.18 It has bee noticed with
dismay in recent years, for instance, that often landlords do not file suits in rent
courts, but take the help of anti-social elements to throw out the tenants by force and
coercion.19 This is nothing else but resorting to the rule of the jungle.
There are, of course, several reasons for inordinate delay in final disposal
of cases. These include: less number of judges, un-revised monetary jurisdiction of
courts, unnecessarily lengthy and contradictory judgements of higher courts, hastily
drafted vague laws, lack of computerization of records and law books, appointing of
sitting judges for judicial enquiries, attitude of some litigants, and so on.

20

Without

denying the role of these factors however, one can still argue that lawyers and judges
8

are equally, if not more, responsible for this sorry state of affairs. If they wanted to set
things right, in spite of Government’s apathy, a lot could have been done to bring
some order and discipline. That is what work culture is all about.
Unfortunately, as stated at the outset, the moment a common person
approaches the judiciary for redress of his grievances, he is appalled by dismal state of
our justice system. Leave alone the regular courts, even quasi-judicial forums such as
consumer courts, which according to the Consumer Protection Act of 1986, should
deliver justice within a specific time (90 days for District Forums), take numerous
years in finally deciding the cases. If a consumer engages a good lawyer to match the
legal brain engaged by the opposite party, he finds his lawyer unable to spare time for
him, as they accept new cases despite their previous commitments. They therefore
appear in courts or send their juniors only to seek repeated adjournments. An average
consumer, pre-occupied as he is with job and other responsibilities, finds it extremely
frustrating to cope with these adjournments.21But presiding officer of the forum, who
should discourage such adjournments, happily grants that on mere asking. If the
complainant happens to be an educated person and wishes to argue his case due to
absence of his lawyer, the presiding officer threatens to send him out the court,
especially when the judge happens to be a former lawyer of the area. This is bound to
lower the esteem of the legal fraternity in public eyes.
The problem of delay is thus not merely a matter of lack of resources and
infrastructure. It is also, to a large extent, a matter of attitudes and work ethic.
Colonial practices still linger in judicial administration. It is estimated that the
Supreme Court, High Courts and lower courts work respectively about 180, 210, and
220-30 days only in a year, though a judge of the Supreme Court and that of a High
Court respectively gets around Rs.1.50 lakh and Rs 1.20 lakh every month.22 In a
country like India, where 40 per cent of its population is living below poverty line, is
it too much to seek a substantial increase in the number of working days and hours for
courts at all levels? Can this county and the litigant public afford a vacation, which is
clearly a vestige of the colonial past, when air-conditioner did not cool the court halls
of the higher judiciary? With appalling arrears of pending cases before courts all over
India, a common man hopes that the Supreme Court and High Courts would set higher
standards in work ethic and productivity by scrapping the vacations.
Another question that plagues a common person is the ‘Division Bench’ in
the Supreme Court and some High Courts. Due to the seating of the judges in pairs, it
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is estimated that of the 548 judges in the country, nearly one-third are not working. It
is time that judges should give a fresh look at this colonial practice and begin to sit in
single benches. What should follow is the scrapping of the archaic system of valuation
deciding the number of judges to hear the matter. It was an old colonial practice with
emphasis on prompt collection of dues to the Government to have two judges hearing
such cases.23

VI

While the judiciary has very little time to perform its basic duty of settling disputes
between individuals and institutions—victims of grave injustice going to approach
Delhi based courts from far away places like Pondicherry, for instance, do not get
even five minutes to put forth their arguments due to truck load of pending cases—the
judiciary has enough time to encroach upon the public domain, which legitimately
belongs to the executive. No one can, of course, deny that the judiciary has rendered a
valuable service to the society by forcing the executive to discharge its obligation by
entertaining, what is called, Public Interest Litigation (PIL). But as the saying goes,
“excess of every thing in bad.” Now judiciary is going to the other extreme of readily
interfering in matters largely relating to the administrative aspects of society, which
legitimately should fall under the domain of the Government. If the Government were
to fail to act in such matters, it is for the people to take up the issues in various
methods, so as to force the Government to act in the matter. In a number of subjects
where judiciary has interfered in recent times, it is seen that no legal disputes have
been involved.24
To cite only a few examples, several eyebrows were raised with regard to
judiciary’s pronouncement regarding the timings of the use of crackers during the
Deepavali festival. Similar is the issue relating to smoking in public places. These
matters are not only beyond the purview of judiciary, but also extremely difficult to
enforce. In yet another case relating to the use of CNG in vehicles in Delhi, much can
be said against the verdict of the court, particularly from the point of view of
availability of natural gas in India, requirement of infra structural facilities, cost
factors involved and availability of alternative eco-friendly fuels. This is more a
subject of techno-economic relevance and cost-benefit analysis rather than a subject
of law and regulation.25 Judiciary’s enthusiasm in encroaching the administrative
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sphere at time when it is unable to devote due time to its basic task of settling disputes
can only create an impression that as this class of litigation attracts media attention, so
judges are inclined to play to the gallery and deal with PIL petitions in preference to
ordinary cases.26
It is therefore high time that judges should realise that PIL, which was
devised for the benefit of the weaker sections of society and those who cannot agitate
their legal problems by themselves, has to be used carefully so that it may not be
blunted by misuse or over use. 27

VII

An independent, impartial, speedy and efficient judiciary is the very essence of
civilization. Unfortunately, however, Indian judiciary, by its very nature, has become
ponderous, excruciatingly slow and inefficient. If these symptoms are not recognized
immediately and if far-reaching judicial reforms are not initiated with a great sense of
urgency and devotion, the judiciary may also fall in public esteem endangering the
whole civil society with dangerous consequences for the public good.
As the saying goes, “the charity begins at home” any agenda for judicial
reform must, however, begin with the internal reforms of the judiciary.
Knowledgeable people, particularly from the Bar say that for much of the problems in
delivery of justice judges are responsible. But as discussed earlier, lawyers too cannot
escape the blame. It is therefore the duty of the legal fraternity to initiate reform rather
than appear to be opposing whenever proposed from outside. Between lawyers and
judges, a movement has to begin for reforms from within if the system has to retain its
fundamentals. Surely, Indian people who gave so much to the judges and lawyers
deserve a better deal from them. .

References and Notes
1

The judiciary has shown concern for the common people through its innovative interpretation
of the Constitution vastly enlarging the scope of fundamental rights guaranteed to the people.
See, for details, Nalini Kant Jha, “The Fifty Years of Human Rights Jurisprudence in India”,
in T. S. Sastry, ed., Fifty Years of Indian Independence and the Polity (New Delhi, 2000),
p.38.

2

N. R. Madhav Menon, “The State of Justice,” The Hindu (Madras), 25 and 26 January 2001.

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3

Cited in, Jayaprakash Narayan, “Judicial Reforms: Need of the Hour,” The Indian Journal of
Public Administration (New Delhi), vol.45, no.3, July-September 1999, p.425.

4

The Election Commission estimates that more than 700 of the 4072 legislators in all the States have
criminal records against them. See ibid.

5

KPS Gill, “Systemic Overhaul Needed to Fight Terror”, The Pioneer (New Delhi), 30
December 2001.

6

Ibid.

7

The 600-plus persons who have been arrested after the September 11 attacks in the US--many
of them described, not as suspects, but as 'material witnesses'--are even now, more than four
months after the event, being held in solitary confinement. Ibid.

8

Justice R. M. Sahai’s observation in Lucknow Development Authority vs. M. K. Gupta case,
as cited in Awtar Singh, Law of Consumer Protection (Lucknow: Eastern Book Company,
1994), p.2.

9

Nitin Saxena, “Air Travel in a Turbulent Ride”, The Pioneer, 27 September 2001.

10 Nripendra Kumar Bhatterjee vs. Indian Airlines, Consumer Protection Reporter, vol. 3, 1997, p.
392.
11 Menon, n. 2.
12 V. R. Krishna Iyer, “Higher Judicial Appointments”, The Hindu, 6 August 2001.

12

13 P. J. Alexander, “Reforming Indian Judicial System: The Common Man’s Perspective, The
Indian Journal of Public Administration, vol. 45, no.3, July-September 1999, pp.351-2. Also,
S. Sahay, “Judicial Accountability: Issues,” ibid., p.420.
14 Cited in, A. S. Anand, “Indian Judiciary and Challenges of 21st Century,” ibid., p.298.
15 Prashant Bhusan, “Judges in their Cause-II”, The Hindu, 5 August 2001
16 V. R. Krishna Iyer, “Contempt Power-I,” ibid, 21 June 2001.
17 For an elaboration of this point, see Iyer, ibid., 21, 22 and 23 June 2001; K. G. Kannibiran,
“Contempt Law and Human Rights,” ibid., 10 March 2001; Prashant Bhusan, n. 14; and
Samaraditya Pal, The Law of Contempt (Calcutta: Law Research Institute, 2001).
18 David Annoussamy, “Courts in the Indian Polity”, in Sastry, ed., n. 1, p.130.
19 Anand, n. 13, p. 299.
20 For elaboration of these and other factors causing delay in disposal of cases, see the report of
the Arrears Committee 1989-90; D. P. Sharma, “Speedy Justice and Indian Criminal Justice
System”, Indian Journal of Public Administration, ibid., pp.356-63; Annoussamy, n. 17,
pp130-32; S. Sivkumar, “Speedy Trial and Judicial Activism”, Cochin University Law
Journal, vol. 21, nos. 3-4, September-December 1997, pp. 51-56; Alladi Kuppuswami,
“Arrears in Courts”, The Hindu, 30 December 2000; “The Judgment Day?” Times of India
(New Delhi), 21 May 2001; and Sudha Ramalingam, “Handmaid of Justice,” The Hindu, 15
January 2001.
21 N. K. Jha, “Consumer Court Delays”, The Hindu, 28 February 1998.
22 Alexander, n. 13, p. 354.
23 Ibid.
24 N. S. Venkatraman, “The Role and the Reach of Judiciary”, The Hindu, 25 December 2001.
Also, Ajay K. Mehra, “The Executive Must Govern,” The Hindu, 25 April 2001.
25 Venkatraman, ibid. Also, P. V. Indiresan, “The CNG Changeover”, The Hindu, 13 April 2001.
26 Discussion with a lawyer in New Delhi on 8 April 2001.
27 Anand, n. 14, p.298.

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