Frivolity Indian Judiciary’s real crisis, not backlog

[This is an AHRC Article.
Republished in Counter Currents.]

The Indian Judiciary is facing a crisis of credibility, which is a challenge from within. These are the words of Chief Justice T.S. Thakur, delivered on March 13 at an event marking the 150th anniversary of the High Court of Judicature at Allahabad. In his speech, the Chief Justice went on to blame this crisis on the backlog of cases in Indian courts.

No doubt, the numbers are a horror story.

As many as 59,468 cases are pending before the Supreme Court, as of 19 February 2016, as per the Court’s own data. Of these, 1,216 date back over 10 years. The high courts have a collective pendency of 4,153,957 cases, with 777,630 of them pending for more than a decade. And, the lower judiciary, comprising district and subordinate courts, has 26,488,405 cases pending, with 2,043,737 of them pending for over a decade. In other words, around 2% of total cases pending with the Supreme Court are a decade old, with the corresponding percentage for high courts being 5.34% and district and subordinate courts being 7.71%.

Despite these numbers, is pendency the cause of a “crisis of credibility” in the Judiciary?A closer analysis would show that thinking so would be akin to missing the forest for the trees. Certainly, having such a vast backlog can by itself create a sense of lethargy or futility in some. However, the pendency is a symptom, not the cause of the malaise that plagues Indian judicial institutions. The learned judge is mistaken.

Behind the bloated statistics of backlog is the story of both willful criminal mismanagement and of rank inequality in society. The numbers are testament to sheer impunity and delays allowed for the rich and powerful, false or frivolous cases to enmesh the marginalised, unfortunate, or political opposition, and the sheer waste of human life in order to maintain status quo. Such a gargantuan backlog persists because the judicial system allows itself to be abused by those with the means of doing so, and shuts its doors to the poor and marginalised seeking redress.

This was the nature of the judicial system introduced under the East India Company to serve its growing financial transactions, and it remains so unto this day. Dependence or independence, poor judgements or quality jurisprudence, makes no difference. The fundamental core of the institution has remained the same: vested interests with the means have been allowed to keep Indian judicial institutions as a cruel joke. And, they have kept these institutions ticking-over with their pranks, while ensuring denial of justice to the needy.

Examples from any time period in the last 200 years would showcase this.

Let’s consider some recent ones.

Last month, Janardhan Goud, a lawyer, got a Metropolitan magistrate in Hyderabad to instruct the police to file a sedition case against 9 people and to place the matter for hearing in less than a fortnight. His argument was simple. According to Mr. Goud, these nine men had taken part in seditious activity because they had visited the Jawaharlal Nehru University (JNU) Campus in New Delhi – a place that is thousands of kilometres from Hyderabad –despite being aware that the Delhi Police had registered a case against the University’sStudents Union President on the charge of sedition. They had “knowingly” supported him and hence it “amounted to sedition” by association.

The 9 people include Indian National Congress’ Vice President Rahul Gandhi, Delhi Chief Minister Arvind Kejriwal, Communist Party of India leader and Member of Parliament D. Raja, Communist Party of India (Marxist) leader and Member of Parliament Sitaram Yechury, and the JNU Students Union President Kanhaiya Kumar.

That the Supreme Court of India has repeatedly held that even shouting anti-India slogans does not amount to sedition until it is accompanied by incitement to violence or violence, means nothing to this court. How could a metropolitan magistrate let such distant legalities come in the way of his quest to deliver justice to an aggrieved Mr. Goud? How could the learned judge also let the vast number of cases likely pending in the judge’s court, come in the way of delaying justice in such an important and urgent issue when political opposition is roaming free, meeting students? After all, justice delayed is justice denied.

Such cases, based on 5 minutes of fame petitions, are not aberrations. They are routine. Just to get an idea of the nature and scale of this routine madness, consider that, another court, this time in Allahabad, 700 kilometres away from JNU, accepted another similar petition seeking the trial of Rahul Gandhi. Again, Mr. Gandhi was argued to be “guilty of treason” by virtue of extending support to jailed JNU students, and thus liable to be tried under Section 124A of the Indian Penal Code. Undeterred by whatever pendency he might have in his court, Additional Chief Judicial Magistrate Sushil Kumar admitted the petition and ordered quick recording of statements under Section 200 of the Criminal Procedure Code.

Alas, it is not only alleged “anti-national” acts that cause the tender sentiments of Indians to be hurt and have them rushing to the nearest court across the country to find remedy. In 2005, Tamil actress Khushboo found herself facing 22 criminal cases in various courts of Tamil Nadu, and in one as far as Indore, Madhya Pradesh. And, what was her alleged offence? In an interview, speaking about premarital sex, she had advised safety and precaution.

The cases were ultimately all scrapped by the Supreme Court in a historic judgement asserting that one of the paramount duties of the Judiciary is to ensure that no innocent person should be subject to prosecution and humiliation on the basis of false and wholly untenable complaints. But, what Supreme Court verdict could deter learned judges across the land?

Painting the entire judiciary with one brush would be a mistake, however. There are notable exceptions. A Chief Judicial Magistrate in Sitamarhi, Bihar, clearly decided to follow the Supreme Court Order to save innocent persons with religious zeal. He saw it in fact as a go ahead to even accept cases against non-persons, deities. Recently, the Magistrate duly accepted a petition against Lord Rama for “ill-treating” Goddess Sita, by banishing her to live in exile in a forest with no suitable justification for doing so! Whether the Magistrate’s Court is bursting at the seam with a backlog or not, at least he does have the will to address past injustices.

In all seriousness, is this not closer to the cause of the malaise that plagues Indian justice institutions on a daily basis? That those with the means to fool around with the courts are being allowed to do so with no check is the bane of the Judiciary, and thereby the nation. There is a flip side of this same coin as well. And, this is about how the same courts shut their doors to poor people seeking redress and justice.

There is no dearth in examples of cases involving disputes of small parcels of land running on for decades through episodic and piecemeal trials. These cases can make the person wronged spend much more on the court case than even the price of the land. What is not as well known is how the Indian justice system treats those who do not even have the means to survive.

The withdrawal of over one-lakh cases slapped on tribal people by the government of Jharkhand in 2009 is a telling example. The withdrawal was ostensibly to win the confidence of the tribal people lest they join the Maoists. Not many batted an eyelid at this withdrawal, even those well aware of the backlog problem in the Indian Judiciary. If these over one-lakh cases were so unimportant that they could be so easily withdrawn in a government order, why were they even filed against tribal people in the first case?

A majority of these withdrawn cases fall into two categories: “stealing wood” and other minor forest produce and “encroaching” on forest land. Yes, the tribal populations were booked for stealing what is legitimately theirs for generations and for encroaching on forest lands, on which they have lived for millennia, with the help of colonial laws that are still in the books, once promulgated so the colonialists could harvest India’s forests. In such cases, poor tribals have languished in jails following arrest, unable to afford a lawyer or pay the meager bail amounts, or even communicate with the outside world once in jail.

India’s jails are packed with such unfortunate under-trials. Poor people arrested on the smallest misdemeanour who do not have the political connections or money who can languish for years, for longer than the longest possible sentences for their alleged crimes; for the fortunate, on the other hand, there are innumerable ways out of jail, even post conviction.

Each of the criminal justice institutionsthe police, prosecutions, judiciary, and prisons – have been kept Janus faced, and allows for the entire judicial apparatus to be used and abused depending on the power of the persons involved.

It is this maintenance of the status quo, i.e. maintenance of rank inequality that the Judiciary does expertly, with total impunity. There is no check on frivolous petitions that get converted into cases, by those close to the Court or judge in question or by departments of the State, or by those seeking to please the Executive by harassing the opposition.

There is a “crisis of credibility” for sure. But, the crisis is not in the numbers. It is in what the numbers represent about the past, and about what continues in routine today. The Chief Justice would do well to stop frivolous cases from accumulating now. However, nothing short of a radical re-engineering of India’s justice institutions will solve the crisis, to create a system where the Judiciary itself stops violating the rights and dignity of the people, and equality before law can be enforced and followed.