Congress leader P Chandambaram recently wrote that the standoff between the judiciary and the Government of India is ‘unacceptable because it will only accelerate the collapse of the justice-delivery system'. He rightly hyphenated between justice and delivery. On the same day in Bilaspur, the Chief Justice of India reminded the nation of the three crore cases pending in the courts. He remembered the recommendations of Law Commission of India to appoint 40,000 judges 30 years ago.
The problem has been recognised much long ago — in the 1950s — when preparations were afoot to form the Commission. In the 1988 reports (124th and 125th), the Law Commission was categorical that the sheer weight of arrears of cases had reached a level of crisis. The fact that the credibility of the judiciary had taken a nosedive because of its inability to render justice in time too was recognised. The above reports linked the direct relationship between the delay in justice and dismal failure to fill the vacancies in judiciary. The Estimates Committee of Parliament then felt that the inordinate delay in filling vacancies resulted in deliberate denial of speedy and less costly justice. Various factors that contributed to the malaise were recognised and measures to retrieve the situation were suggested.
By then, as many as 10 attempts had been made by various committees and the Commission to tackle explosion of cases, but only a few have been implemented. The justice delivery system continues to flourish and even claim, cheekily, that the explosion of cases is an indication of faith of citizens in it. How has this unacceptable system been able to thrive without consequences? Is this because someone else, other than the ‘clients’ or ‘litigants’, who actually suffer from the malfunctioning of the system? After all, more the delay in the disposal of the cases, more lucrative it is for the lawyers and all involved in running the system.
Article 21 of the Constitution says that life and liberty of no citizen shall be taken away except in accordance with the procedure established by law. This mandate logically expects that there shall be an adequate and appropriate criminal justice system to implements its spirit. But its unpreparedness has been evident since 1950s. Yet this has been acceptable to us in practice. Moreover, the tough talk against crime has been forcing the system to deliver somehow. The system at the brink of collapse, however, can handle far less number of cases than it is handling at present.
It can dispose just as many cases as standards of adjudication could permit. Its ability to stretch and strain itself cannot be inexhaustible. Yet it has been handling exponentially growing number of cases over decades. How is this possible? Is this possible without compromising the standards of adjudication? The nature of compromises may not be openly visible, nor do we care for the standards. The concrete effect of a badly-run criminal justice system must be visible somewhere or the other!
Prison profiles are plausible indicators of the results of the toughening stand of the defective system. The reliable and comparable data available for the period 2001 to 2014 have startling revelations. For the period, the average prison population increased by 33% whereas the undertrial prisoners languishing for more than five years increased to 180%.
The prisoners serving life sentence increased from 42,142 to 71,632 showing an increase of 69%. While Britain considers one in seven prisoners (14%) undergoing more than 10 years’ sentence as a terrible development, India, since 2001, has been consistently holding more than 50% of total convicts as life sentenced.
Besides delayed justice to the citizens inside and outside of prisons, the dramatically increasing number of deaths in prisons can also be the result of cumulative effect of an ill-equipped system. While overcrowding in prisons is widely acknowledged, their impact is not. For the same decade and a half, the number of deaths in prisons increased from 978 to 1,704, a 74% increase; the number of suicides from 38 to 94 showing 147% increase; and, unnatural deaths from 94 to 195 marking a 107% increase. This is excluding 82 deaths under the newly introduced ‘uncategorised’ column of statistics in 2014.
Collapsing justice
We have to accept that the collapsing justice delivery system has its consequences but only those who are at its receiving end are paying the price. There is no point in demonstrating the underprivileged social profiles of the ‘clients’ suffering. None of these deaths are judicially accounted for as per norms. While systemic failures can be part of abstract political debates, the loss of life and liberty of citizens is real. It can continue to survive but its impact on the citizens can be devastating and irrevocable. Is this unpreparedness acceptable to us?
The unpreparedness of the criminal justice system - police, judiciary and prisons - has often been acknowledged. The level of unpreparedness seems to be inversely proportional to the credibility of the social group in whose case the system fails to perform. But what is not explicitly acknowledged is the impact of this unpreparedness on the citizens.
This could be partly because of its unwillingness to implicate itself morally, legally and economically for the loss of lives and liberties. If the system is unprepared to protect the life of the dependents it forcibly created, is it acceptable? What extent of unpreparedness is unacceptable to democratic conscience of a society? Only this ethical imperative can honestly force both the civil society as well as the system to embark on overhauling itself.
Conveniently, Chidambaram may forget the misgovernance his party presided over in this regard. But the urgency of justice cannot be a catastrophe in the tussle between judiciary and the government. Can both judiciary and government rise above the debate of share of power and deliver justice to citizens?
(The writer teaches at Tata Institute of Social Sciences, Mumbai)