Economic Survey Doesn’t Do Justice to Question of Judicial Reform

Lawyer Prashant Kumar expresses disappointment in Chief Economic Advisor’s response to the issue of judicial reform.

When I read the current Economic Survey, I was happy that at last someone chose to focus on the issue of judicial reforms – only to be disappointed, as it seems that the Chief Economic Advisor Arvind Subramanian has bought the ‘judicial decisions leading to policy paralysis and economic waste’ argument of India’s top career bureaucracy.

He was supposed to bring about a different mindset than that of the IAS, a bureaucracy so malignant that American scholar Nassim Nicholas Taleb calls it ‘metastatic’.

Abuse of Power Routine, NOT Exception

The critique that the High Courts and Supreme Courts have vastly expanded their Constitutional writ jurisdiction is valid only to a certain extent, and unfair if you do not bother to look into ground realities that gave rise to it. That is exactly the problem and futility of the kind of material referenced for the chapter mostly authored by so-called experts, most of whom do not have any skin in the game.

In a slow, under-resourced judicial system, those who are at the receiving end of injustice caused by arbitrary actions of various public authorities, have no other option but to approach judicial fora, and a writ remedy is supposed to be an expeditious remedy.

The fact that public servants can afford to take decisions in a rank, arbitrary manner and the abuse of discretion is a routine, rather than exception, has led to an explosion of the writ docket.

Validity of Critique of SLPs

The truth of the matter is there is a complete lack of accountability and no top bureaucrat is ever made to face the consequences of rampant abuse of power and arbitrary decisions, which has developed a culture of administrative impunity at the expense of citizens, industries and entrepreneurs.

One must remember a writ jurisdiction is only invoked when the petitioner can make out a threshold case for violation of fundamental rights by the state or its instrumentality. Therefore, writ jurisdiction in this country has become the outlet for the primeval cry for justice.

The critique of Special Leave Petitions (SLP) jurisdiction expanding in the Supreme Court from what it was originally designed for, is also valid only up to to a certain point. The percentage of SLPs being dismissed at the admission stage has always remained above the threshold of two thirds.

Because of the concern regarding access to justice, courts in India have been averse to imposing costs to deter litigants from approaching judicial fora, including the Supreme Court, when approached by way of an SLP. As a concomitant side effect, this leads to a lot of frivolous petitions being filed, which are mostly filtered out at the admission stage.

This consumes valuable judicial time and resources. It would not be right to impose economic cost and benefit theory in matters of access to justice in a highly unequal society bearing enormous burden of administrative abuse by unaccountable bureaucracy.

Not Mere Inefficiency but a ‘Well-Rehearsed Game’

The last is point about clogged dockets taking away the attention from economic matters of high value which remain pending, causing enormous economic loss – I would request the Chief Economic Advisor to immediately commission a study to find out how much time is taken by government departments for filing half- baked, ill-prepared replies, then for filing further replies and taking endless adjournments.

It is not merely inefficiency, but a well-rehearsed game played to perfection to cover misdeeds, conceal facts, present half-truths and simply delay so much to ensure that judicial determination becomes futile and redundant.

All one has to do is speak (in confidence) with a few top government law officers to understand what happens on the ground. We, the citizens, and those who have stakes in the sector of justice, would be forever grateful should the Chief Economic Advisor choose to publish the insights formed in the next Economic Survey.

Having said that, the Chief Economic Advisor deserves all the gratitude for opening up an area so central to economic governance, and this can only pave the way for ensuring better learning to find the right solutions.

(Prashant Kumar is the President Elect to the Bar Association of India. The views expressed above are of the author’s alone and The Quint neither endorses nor is responsible for them.)