Psychosis of the pending republic
Private conscience, it would seem, is at war with itself and with public conscience.India woke up on Friday to the news of the execution of four suspects — accused of the dastardly act of raping and killing a young woman in Hyderabad — by a police posse in an early morning encounter. The news triggered high-decibel applause and ringing endorsement of the police action on the social media and on television through the day. That Members of Parliament elected to enact laws and ministers under oath to uphold the Constitution were part of the chorus eloquently spells the state of the rule of law.
The broken criminal justice system has left reason in no man’s land and has triggered an urge among citizens to redefine what is right. The public applause for the extrajudicial executions represents frustration of private individuals about persistent public failure. The anger reflects the psychosis of the pending republic — a circumstance where people perennially find promises of governance stranded between decisions and implementation.
The Preamble of the Constitution of India promises to secure to all its citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity. Article 21 guarantees that ‘No person shall be deprived of his life or personal liberty except according to procedure established by law’. The promise of securing liberty, ensuring equality and ensuring justice is dependent on the state with all its inadequacies and incapacity.
The immediate cause of rage is the delay in prosecution and punishment in rape cases. As per the government there are 166,882 rape cases pending in courts — over 30,000 in high courts. Barely a third of the cases result in conviction and the ghastly reality is that nine of ten cases are registered against child rape.
The obligation to make life safe for women and children demands creation of capacity for prevention, detection and prosecution. Prevention and detection are daunted by boots on the beat. The police-population ratio is well below global norms —- out of the sanctioned 23.79 lakh police posts, over 5.28 lakh, that is one in five, is vacant. Following the brutal rape case in Delhi in 2012, the government of India, in the 2013 budget, created a corpus of Rs 1,000 crore. Typically, the protocol on how this fund would be utilised was not framed until 2015.
In November 2019, the government informed Parliament about the allocation of funds and utilisation by states. The allocations thus far add up to Rs 1,672.21 crore. What about utilisation? Of the total monies allocated, barely Rs 146.98 crore was utilised. How did the states fare? Five states — Maharashtra, Manipur, Sikkim, Meghalaya and Tripura — used 0 per cent of the Rs 178 crore allocated to them.
Delivery of justice requires capacity. The Eleventh Finance Commission in 2000 and the Thirteenth Finance Commission in 2009 underlined the pendency of cases and made special allocation for setting up new courts. The Law Commission in 2003 and 2008 urged the setting up of fast track courts. In 2005, the government had set a target of 1,800 fast track courts. In June 2019, there were 581 fast track courts.
The state of the criminal justice system is best illustrated by data on cases across the country. There are, as of this month, a total of 3,17,35,515 (3.17 crore) cases pending across courts. Over 4.36 lakh cases are pending since two decades and more, 19.34 lakh cases are pending since a decade, and 42.02 lakh cases for over five years.
The location of pending cases illuminates state failure further. There are currently 59,867 cases pending in the Supreme Court, 40.90 lakh cases pending in High Courts, with Punjab and Rajasthan accounting for a fourth of it, and 3.16 crore cases pending in the subordinate courts. Uttar Pradesh tops the list with over 75.52 lakh cases pending, including 92,587 in Unnao, in its subordinate courts. The cost of delays is manifest in the tragic death of the rape victim from Unnao, who succumbed to injuries after she was assaulted and set on fire.
The state of pendency is the consequence of many gaps — primarily of human capacity, of judges. India’s high courts, it has been estimated, need 1,079 judges. In December 2019, only 669 are in place — effectively four of ten posts for judges are vacant. The situation in subordinate courts accounting for 3.16 crore pending cases is no better. The sanctioned strength of judicial officers in district and subordinate courts is 21,340, of which 3,583 posts are vacant.
There is no dearth of remedial literature. A series of committees and commissions have studied, analysed and made recommendations. What is known, where is known. When is unknown. Without an effective justice system, ambitions of vaulting orbits will be berthed in the harbour of delusion.
The aspiration for rule of law is being failed by a system that is flailing. In the seminal tome Leviathan, Thomas Hobbes says the law is public conscience — an essential of the social contract to ensure order, or else “no man dare to obey the sovereign power farther than it shall seem good in his own eyes.”
Rule of law is sine qua non for any democracy. A failing system is an invitation to vigilantism. Worse, it could engender what Hobbes called war of everyone against everyone.
Author of Aadhaar: A Biometric History of India’s 12 Digit Revolution, and Accidental India