India’s Judiciary Is In Crisis – Major Overhaul Is The Only Way

The Indian judiciary is in crisis, and reforms are needed to make it the world-class judiciary we need.

Four senior judges of India’s Supreme Court have raised serious concerns about the integrity of the country’s judiciary. They have accused the highest court in the land of bench-fixing and collaborating with government. These charges cannot be ignored as minor internal matters. The judges themselves consider them so important for the future of India’s democracy, that they have broken our longstanding tradition of collegial silence, and have gone public.

The grim matters our judges have raised are symptomatic of a deep malaise. Nearly every aspect of India’s judiciary – its jurisdiction, structure, method of appointing judges, transparency, and accountability – has failed to serve the Indian people.

Justice Denied by Pendency, Corruption and Inequity

India’s judiciary has denied, delayed, or botched justice in far too many cases. Consider some measures of its performance. There are more than 22 million cases pending in Indian courts, of which six million have been delayed for more than five years. Even in the Supreme Court, the number of pending cases has grown from less than 700 in 1950, to more than 60,000 today.

The courts are also notorious for corruption. According to Transparency International’s latest Global Corruption Barometer, 45% of Indians who went to court in 2016 said they had to pay a bribe. This was the second highest level of corruption in the entire Asia Pacific region.

In 2010, a former law minister told the Supreme Court that according to his knowledge, eight of the sixteen chief justices of India were “definitely corrupt.” The current Chief Justice, target of the four judges’ accusations, has raised eyebrows about his own handling of two recent cases. Some opposition parties are considering calling for his impeachment.

Indian courts also cater brazenly to the nation’s elite, moneyed, and well-connected. In 2013, two Supreme Court justices declared: "We can say on oath that only 5 percent of the time is being used for common citizens, whose appeals are waiting for 20 or 30 years. This court has become a safe haven for big criminals.”

Tweaking the judiciary here and there will no longer bring results. We must consider the following broad reforms:

1. Check on Jurisdiction

A 1988 Law Commission report concluded that the Supreme Court of India has one of the widest jurisdictions of any apex court in the world. This has not only overburdened the courts, it has allowed judges to delve into areas that should be the responsibilities of our Executive or Legislative branches. The highest constitutional court of the nation is busy with regular appeals pouring in from all over the country, many in areas that do not even belong with the judiciary.

Public Interest Litigation is one such example of courts’ expanding jurisprudence. Constitutional expert and winner of the Padma Bhushan award, Dr Subhash Kashyap, wrote, “For some decades… the judiciary may be said to be under a narcissus complex, looking at its image of a creator or artificer of law… Through the so-called creative jurisprudence, the principles of Constitution… are being eroded.”

Most legal scholars have called for self-restraint by the judiciary. Some suggest setting up specialised benches, reappointing retired judges, and implementing better internal systems to cope with the traffic. Arghya Sengupta, Research Director of the Vidhi Center of Legal Policy, has recently proposed that Parliament pass a Supreme Court Act restructuring the Court into three divisions: Admission, Appellate and Constitutional.

But what is needed is a check on jurisdiction, not just better ways of handling the workload. Courts must have some external restrictions on their powers, just like all other branches of government. These restrictions can be provided by following the US model in the following three ways.

1. First, give Parliament the power to determine the jurisdictions of federal and state courts (see Accountability below).
2. Second, give it the authority to establish lower courts, inferior to the Supreme Court, such as the US Courts of Appeals, Federal District Courts, and Tribunals.
3. And third, give Parliament the power to make exceptions or regulate the Court’s appellate jurisdiction. These provisions will not only provide a check on the judiciary, but they will make elected representatives more accountable.

2. State Judiciaries

India is too vast a nation for a unitary judiciary, centralised in the Supreme Court. Often proposals have been floated for setting up regional benches of the Court across the country. In 2010, Justice VR Krishna Iyer argued in favour of decentralising the entire system. He wrote, “Decentralisation has a paramount desideratum if access for the people to judicial institutions has to become a reality.” “Up until now,” he said, “judicial reform has been a tinkering exercise, not an engineering project… This is unfortunate.”

Since India is a federation, why not make states accountable for their own judiciaries? Each state already has a High Court that coordinates many efforts with the state government. India can have a system of separate federal and state courts, where federal courts have jurisdiction over inter-state, national, and international issues, while state courts have jurisdiction on all intra-state matters.

This would of course necessitate making the powers of state and federal governments distinct. Our Constitution’s Concurrent List of overlapping powers must therefore be abolished. It is only allowing each government to interfere in other’s areas, and avoid responsibility. R. Jagannathan, editor of Swarajya, has also called for the scrapping the Concurrent List, as it “creates needless confusion.”

3. Accountability and Transparency

Giving government control over the judiciary makes no sense. But that does not mean that an important organ of government can be left without checks, or accountability to the people. In the wake of those four judges’ exposé, our scholars have called for more transparency and accountability of the judiciary. Some have demanded that Parliament pass the long pending Judicial Standards and Accountability Bill. This would establish an oversight committee, and allow scrutiny of judges. Others have appealed to senior justices to “prise open the veil of secrecy.”

The issue of accountability is intertwined with the method of appointing judges. No democratic institution can last without the people’s involvement in selecting its officials. India has been struggling with this for decades. All methods of appointment—by the President, PM, Collegium, etc.—have failed to deliver. Now there are calls for government to prepare a Memorandum of Procedure. But this too would place the Executive, the biggest litigant, in some control over judges’ appointments, transfers, and promotions.

India must consider giving the Legislature a say in appointing judges, along the lines of the U.S. system. In that system all nominees put forth by the Executive (President) are subject to approval by their Senate. This allows the people’s representatives to have a public say. It also synchronizes the judiciary with changing public attitudes, a chief requirement for any democratic institution.

The Rajya Sabha is ideally suited to provide such oversight, of course, with some reforms of its own. It can act as the approver of judges nominated jointly by the Executive and Collegium. It can pass legislation to establish new courts or change jurisdiction as described above. And, as the states’ council, it can be the house to scrutinize the performance of state-run judiciaries.

The time has come for India to have a world class judiciary. The only way to get one is through bold, visionary steps.

(The author is Founder and CEO of the Divya Himachal group and author of ‘Why India Needs the Presidential System’. He can be reached@BhanuDhamija .This is a personal blog and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)