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Judiciary Is A Key Pillar ... Of A Constitutional Democracy

Providing justice is never going to be easy and some of the the influences as well practical difficulties in process can be expected.

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India on its independence organised itself as republic to be governed by constitution with the basic principles of freedom in a multi caste, multi religion and diverse country. This probably was our first experiment of bringing diverse ethnicities, religions, cultures, language as well as regions under a single flag and identity. A very bold initiative in the hindsight looking at the developmental index we were at in 1947 after centuries of being divided and ruled. Nobody in their right thinking minds would have given us a chance and they did not. Yet here we are 70 years from that fateful day and surviving! Why and how,are the question,that come to mind. Nobody can be certain but two key reasons that helped come to mind ie establishment of institutions and a fair as well as impartial judiciary. Both these factors are somewhat hand downs from the British model but adopted very successfully by our constitution as key pillars of our democracy. It’s when there is a omnipresent danger of these key pillars not being effective, do the anxieties surface that question our ability to survive as a nation successfully. Now is one such time ....

In a world, where the constitution places a lot of power in the executive, there need to be strong facilitators which help the ordinary citizens get their rights. Judiciary is the chosen facilitator in this regard, which means its bent of justice has to be for the people and to some extent against the executive. It’s not only the protector of rights of ordinary citizens but is also seen as a upholder of law, policy, business fairness and arbiter of disputes. It’s rightly the mirror of truth per the constitution without fear or favour and its symbol, the blindfolded lady with a scale along with motto ‘Satyameva Jayate’ symbolises this duty. While it may have performed reasonably well, with individual brilliance of many who have sat on the high chair,the institution has had its issues. These issues when they start affecting the fairness barometer is when the alarm needs to be raised for its too important a pillar to be let go! While India admittedly is a difficult country to govern here are a few observations (not new) which would help restore the credibility of this august institution

Judicial Infrastucture

India is a large country with decentralised governance and hence the provision of justice needs to equal the complexity of its population both in numbers as well as diversity. The infrastructure of judicial dispensation is far short of what is required. We need more courts, more judges and more accessibility to the judicial system. Our system is today mired in delays which partly hindered by poor infrastructure and partly by design such that any reasonable case whether criminal or civil requires 10 to 15 years for resolution, if one is lucky.Justice delayed is justice denied is an old maxim which seems to have been lost somewhere. Delays inherent in the system are not only detrimental for justice but also hinder human rights, business rights and the ease of doing business in India significantly. Technology is one way we can overcome some of the issues. Being data heavy we need to find a system to digitise data, expand judicial reach through digital hearings ( we now know it can work) and revisit rules and protocol which hinder though once were a hallmark of the judicial dispensation. We need to bring down time to justice and cannot afford to have judicial pendency running into millions of cases.

Judicial reforms

Our civil and criminal code has been adopted largely from the British model. While somethings have been changed based on the experiences, it still has laws which may not be relevant anymore. The change has been relatively rapid in the last few decades but there has been a limited review of the code. The rules under the code also may need a change as with better communication as well as compliance it may not be necessary while new laws may have to be enacted like for instance Privacy law which are necessary in the digital world. Strict adherence to professional standards in case of penal provisions is also a way forward as in all cases one may not need imprisonment rules where a fine can be adequate deterrent. Complex procedures,inaccessibility,and high costs are a bane and simplification would help quicken time to justice.

Judicial appointments

One of the key necessities in the judicial process is the appointment of relatively qualified people who dispense justice sitting on that high chair. Qualifications are not only in relevant knowledge of law and processes but also one’s affiliation,ability to handle pressure and demonstrated ability of being free and fair. Clearly a very difficult task and so it should be as you are being appointed to a position of an arbiter of justice. The importance of the profession is clearly reflected in our constitution as the Chief Justice of the Supreme Court is always mentioned next to the President and the Prime Minister of the country. This is true not only in India but also in all constitutional democracies. It’s imperative we put good people there. Therefore the selection process whether at the district level, the high court or the supreme court needs to rigorous and without any bias. Whether its collegium based or with Government vote, the process needs to be followed. Vetting of candidates background need to be robust. Only then can we get a judiciary which is free and fair. Political influence and money power are the areas where one needs to guard against and one step could be lure of appointments after retirement. Human nature is susceptible to these influences but if we can deter a majority of the people at the helm away from this vice we would have done our job.

Providing justice is never going to be easy and some of the the influences as well practical difficulties in process can be expected. They have happened and will continue to happen. The only way is to continually raise one’s voice whenever we feel that this important pillar is not performing to potential. Judiciary is our biggest safeguard to freedom. For us to breathe freely in a diverse country like ours we need them to stand strong as that pillar which guarantees our constitutional rights. The judicial community too needs to realise that they are the chosen one’s who enjoy the trust of millions and they cannot let them down.

Disclaimer: The views expressed in the article above are those of the authors' and do not necessarily represent or reflect the views of this publishing house. Unless otherwise noted, the author is writing in his/her personal capacity. They are not intended and should not be thought to represent official ideas, attitudes, or policies of any agency or institution.


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Timmy Kandhari

The author is Founder & MD, Sapphire professional Services

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