Recently, the Supreme Court has given directives for what types of cars should be permitted to drive in Delhi, and at what times trucks can be permitted to enter the city. The Union Finance Minister has complained that courts are over-reaching themselves, meddling with matters outside their purview, according to him, and questioned their competence too.
The Chief Justice of India recently came to tears before the Prime Minister pleading for more judges. Clearly, the courts are over-burdened. They are unable to dispose of even routine matters. A government report in 2014 revealed that two-thirds of the inmates languishing in Indian prisons, some for many years, had yet to be convicted of any crime.
India has more than 22 million legal cases pending, 6 million of which have been stuck in courts for five years or longer. When a system is not able to handle the flow through it, the problem can be that the capacity of the pipe is too small. Or that too much is being forced through it. The capacity of India’s courts is clearly insufficient. India needs more judges (it has 14 judges per million people compared with 107 in America), and more courtrooms. Moreover, antiquated court processes can be streamlined by digitization of records and procedures. Indian courts are also facing a demand-side problem, with judges being compelled to do more than they need to. In his first speech to the nation from the ramparts of the Red Fort in Delhi, on Independence Day 2014, Prime Minister Narendra Modi said he was dismayed that ministries of the government were taking each other to court, rather than resolving matters amongst themselves. The causes could be unwillingness of officials to take responsibilities for decisions — best leave it to the court, or inability of officials to find solutions on contentious matters.
The Supreme Court and high courts are being drawn into matters that should have been settled by the executive branch of government. When the executive is unable to resolve matters to citizens’ satisfaction, citizens appeal to the courts for redress through public interest litigations and other legal processes. Increasingly, Indian courts are compelled to give decisions on environmental issues, traffic management, safety of women, and other such matters for which they do not have the technical competence. That the courts are overly engaged with such issues, is a reflection on the competence of the government to manage them. Another reason the courts are being burdened with so much could be that there are too many laws.
Whenever awareness builds up that a major societal problem must be addressed — corruption, safety of women, hunger, and unemployment, to name some — demands spring up from sections of civil society for another law, with the expectation that the passage of the law will make the problem go away. Chronic problems of the Indian state are the incapacity of the administration and police to implement laws already on the statutes, and the inadequate capacity of courts to handle litigations arising from those laws. Therefore, while passage of another law may give satisfaction to its advocates, it may provide little practical relief to citizens.
More laws are good for lawyers. When a society is choked with more laws than its courts can handle, services of good lawyers become indispensable for citizens to obtain justice. Lawyers can also find many ways to delay legal processes if they have incentives to do so. Obvious incentives can be more fees with more appeals and more appearances, which rich clients can afford. These burden the courts further. Meanwhile, those who cannot afford the legal costs are denied justice. Justice delayed is justice denied. And, in a just society, justice must be available equally to all, whether rich or poor. It is estimated that half of the inmates languishing in Indian jails who could seek release on bail, do not do so because they do not know their rights, or cannot afford the services for bail.
The capacity of India’s courts must be increased and systems streamlined to enable courts to do what they are intended for. Courts must interpret laws, and they must adjudicate in disputes between the state and its citizens and between citizens. Many reports have been written and recommendations made over the past thirty years on streamlining the justice system.
Like the case files gathering dust in courts, these reports are also gathering dust somewhere in the bowels of the government. Prime Minister Modi’s government came into power two years ago along with the slogan “minimum government, maximum governance”. In a well-governed society, the government is expected to find workable solutions to complex issues such as impacts of industry on the environment, safety of citizens, and availability of affordable medicines. If the government does not have the capability to bring people together, to convert their contentions into consensus, such issues end up in courts, even if the courts are not equipped to resolve them.
E-governance is not a solution for this. In fact, ‘e-governance’ is a misnomer. Digitization of the interface between citizens and government, and digitization of government’s internal processes, are processes for ‘e-government’. They improve the transparency and efficiency of government’s own processes. Whereas good ‘governance’ requires processes that enable societies to steer themselves through complexities and conflicts, and convert contentions into collaboration.
When good governance processes work, courts will be relieved of addressing matters they are not set up for, but which India’s citizens are turning to them for as a last resort. Therefore, to relieve the courts and improve justice for citizens, the government must improve its own capability to govern.
arun maira is a former member of the Planning Commission Email: thebillionpress@gmail.com