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News: There has been the erosion of trust in the lower judiciary comprising high courts, and district and sessions courts. This makes it imperative to look into the functioning of lower judiciary in India.
(1) Substantive justice: It is associated with whether the statutes, case law and unwritten legal principles are morally justified (e.g., freedom to pursue any religion). For example, the Citizenship (Amendment) Act 2019 is alleged to be violative of the constitution, thus is a violation of substantive justice.
(2) procedural justice: It is associated with fair and impartial decision procedures. The case of Lal Bihari, who was officially declared dead but struggled for 9 years to prove that he was alive, involved violation of substantive and procedural justice.
What are the issues in the lower level of Indian judiciary?
(A) judicial corruption
(1) political interference in the judicial process by the legislative or executive branch, as refusal to comply can lead to political retaliation, and
(2) bribery: it can occur throughout the chain of the judicial process including delaying or accelerating verdicts, accepting or denying appeals, or simply to decide a case in a certain way. For example, lawyers can charge additional “fees” to expedite or delay cases.
(B) Severe backlogging: According to the National Judicial Data Grid, there are 2.4Cr pending cases in India’s district courts. Out of the total, 23lakh cases have been pending for over 10 years, and 39lakh cases have been pending for between five and 10 years.
(C)Understaffing: In the subordinate courts, 4,432 posts (or 22% against sanctioned strength) of judicial officers were vacant (as of December 31, 2015). In the case of the High Courts, 458 (or 42% of the sanctioned strength) were vacant as of June 2016.
Some reports about judicial corruption
According to Transparency International (TI 2011), around 45% of people between 2009-2010 paid a bribe to the judiciary for quick disposal of case related to divorce, bail, and other procedures.
According to the Asian Human Rights Commission (AHRC), a person spent at least ₹ 1,000 as bribes in bringing a petition to the court.
According to the “Freedom in the World 2016 report, “India’s lower judiciary has been rife with corruption”.
According to the GAN Business Anti-Corruption Portal report 2017, “there is a high risk of corruption at the lower court levels. Bribes and irregular payments are often exchanged in return for favourable court decisions”. For example, Tis Hazari District Court Senior Civil Judge was arrested for allegedly accepting a bribe to rule in favour of a complainant in a case.
What are the impacts of judicial corruption?
Such kind of corruption induced incidents in the lower level of judiciary lead to erosion of public trust. The erosion of trust in the judiciary could severely imperil governance.
The lack of justice delivery is bound to promote proclivity to deliver instant justice, extra-judicial killings, exercise of extra-constitutional authority, widespread corruption, and unprovoked and brutal violence against some sections of society (e.g., lynching of innocent cattle traders).
Judicial corruption leads to failure of procedural justice and to some extent substantive justice.
The Greek philosopher, Aristotle said, “It is in justice that the ordering of society is centred.”
The trust in the judiciary is positively and significantly related to the share of undertrials for three to five years under total prisoners. Therefore, the share of undertrials must be increased in India.
Source: The post is based on an article “India’s judiciary and the slackening cog of trust” published in the “The Hindu” on 09th May 2022.