The failure of prosecution in a spate of recent cases has re-focused public attention on our justice system. Distinguished jurists as well as political leaders and commentators are lamenting the near-collapse of rule of law, due to failure of civil and criminal justice systems.
The factors limiting economic growth are infrastructure, productivity of labour and failure of rule of law?all integral to governance. Nothing demonstrates the failure of governance as the incapacity to bring the guilty to book, resolve disputes or enhance state legitimacy.
State failure to resolve disputes and enforce contracts swiftly and peacefully has inhibited investment and risk-taking. Worse, it has spawned an industry of providing rough and ready justice, often through violent means. A combination of poverty, injustice and poor services are undermining the state?s legitimacy, fueling Maoist violence and anarchy in large pockets of the country. This corridor of Maoist insurrection, backed by arms trafficking condoned by a corrupt and inefficient administration, poses a serious challenge to stability and economic growth.
The large pendency of cases in our courts (30 million) is a well-known symptom of failure of rule of law. Typically, in most civilised countries, civil disputes vastly outnumber criminal cases. In India, despite the relatively low crime rate, pending criminal cases are twice the number of civil cases. This aberration is symptomatic of two dangerous trends. First, most civil disputes no longer go to courts, and people either resort to extra-legal means for justice or swallow injustice and suffer silently. These ?missing cases? are a manifestation of low public confidence in the formal institutions of justice.
Second, in the absence of rule of law, might has become right. People are taking recourse to violence and crime readily. The failure of civil justice and the perception of weak law enforcement are together accelerating criminalisation of our society. As political office gives ample opportunities to subvert crime investigation, many criminals are taking shelter under politics. This has further undermined the criminal justice system and weakened the state?s authority.
We must recognise the centrality of institutions of rule of law in creating a climate conducive to fair competition and economic growth. Our investment on the judiciary, for instance, is abysmally low, at less than 0.2% of GDP, according to the First National Judicial Pay Commission. While Singapore (1.2% GDP), US (1.4%) and UK (4.3%) recognise the economic importance of an efficient judiciary. Not surprisingly, we have about 12 judges per million population, whereas the OECD countries have 10 times that number!
? Incapacity to punish the guilty & resolve disputes is due to failure of governance ? Institutions of rule of law are central in creating a climate suited for investment ? Committees and experts have identified practical, effective measures; act now |
The problem is more complex than budgetary allocation and number of judges. The quality of judges is less than satisfactory and bright lawyers are not inclined to accept judicial appointments. Legal education is of indifferent quality in most universities, with law courses often seen as a means of prolonging college education. Procedures are archaic, and prone to manipulation and delays. Even the hallowed judiciary is besmirched by the taint of corruption. Perjury is very common in our society and even otherwise truthful and upright people do not regard lying under oath as morally reprehensible. Police functioning is often crude and unprofessional. Crime investigation is increasingly influenced by political pressures and corrupt motives. The litany of woes is endless.
Happily, there is increasing recognition among all sections that the rule of law needs to be strengthened. Poli-ticians are worried about public pressure and the declining legitimacy of the state. The judiciary is concerned about diminishing public confidence in our justice delivery system. Entrepreneurs realise that wealth creation cannot be pursued without peace, harmony, effective enforcement of contracts, and speedy and efficient dispute resolution. The middle classes and media are angry that might has become right and the system is becoming dysfunctional. We need to channelise these concerns constructively to improve the climate of rule of law.
We don?t have to go far to seek solutions. Several committees and experts have identified practical and effective measures. First, a system of low-cost, citizen-friendly local courts needs to be created to try small cases, civil and criminal. They can adopt simple procedures similar to small claims procedures in the UK, and guarantee time-bound justice.
Second, procedural laws are due for significant revision to suit modern conditions and to ensure speedy trial. Many archaic provisions of civil and criminal procedures and evidence law have been identified by experts. Third, a career in judiciary must be made attractive and rewarding for bright young lawyers. The Constitution provides for creation of an all-India service, similar to the IAS and IPS, for the judiciary to attract talent and reward it with sufficient stature and career prospects. Fourth, a National Judicial Commission should be created to oversee both appointments and removals in the higher judiciary. While the quality of higher judi- ciary is not guaranteed by current methods, the impeachment process has failed to enforce accountability.
Fifth, police functioning must be modernised and adequate resources, mobility and technology guaranteed. Sixth, crime investigation should be separated from other police functions and made independent and accountable. Investigation and prosecution must work in close coordination. Finally, strong, sustained, credible and effective measures should be initiated to curb the menace of corruption in police and judiciary. The examples set by High Courts in Maharashtra, West Bengal and UP are worth emulating.
Much can be done to restore the primacy of rule of law. The current climate of public discontent provides an ideal opportunity to act decisively.
?The writer is coordinator of the Lok Satta movement and VoteIndia, a national campaign for political reforms
