Why the judiciary is failing?

Context: This article, the first in a series of three, suggests that although the rule of law is a necessary condition for the survival of civilised society, but it is not sufficient for the delivery of justice.

This first article will focus on the judiciary, especially the higher judiciary, the next one on police reforms, and the last one on civil society.

What are the issues associated with the higher judiciary in India?

As per the author of this article, the Supreme Court has failed to do its job, both as a constitutional court and a court of final appeals.

It has neither been able to enforce the law satisfactorily, nor ensured relative uniformity in judgments so that justice is seen to be delivered. 

Public opinion on getting justice from the courts is unenthusiastic at best. This is the result of not only endless delays, but also a huge variability in verdicts. The variability can be gauged from the following instances:

Last month, a three-judge bench, headed by Justice U U Lalit, reduced the sentence of a rapist-murderer of a four-year-old child.

On the same day, a lower court in Thane sentenced another rapist-murderer of a seven-year-old to death

– In 2021, the Bombay High Court, in a similar case, upheld a death sentence.

The convicted rapists in the Nirbhaya case were all executed.

Another issue is the Supreme Court’s apparent preference for taking up limelight-hogging public interest litigation (PILs) compared to bread-and-butter cases of justice.

An analysis by the Supreme Court Observer shows that on an average, over 26,000 PILs were filed annually between 1985 and 2019, totalling over 900,000 PILs in all. Such huge number of PILs is the result of a general belief among litigants that PILs make more sense than regular legal recourse.

Real constitutional issues left unaddressed: Moreover, in recent years, the Supreme Court has taken up everything from deciding whether there should be bars on highways to whether SUVs should be taxed more for entering Delhi, and whether oxygen and vaccine supplies have been managed properly during the Covid spike of 2021.

On the other hand, real constitutional issues — on the legality of the Citizenship Amendment Act, the rights of Hindus to administer their own places of worship, article 370 abrogation, and the review of the Sabarimala judgment — are being left unaddressed for years on end.

Courts expound on how governments cannot amend some “basic features” of the constitution without ever defining what constitutes a basic feature.

Bail, not jail, is supposed to be the norm, but the lower courts can ratify the arrest of anyone who publicly criticizes a powerful politician.

Has the Govt made efforts at streamlining the court process?


In 1999 and 2002, the Atal Bihari Vajpayee government made major changes to the Code of Civil Procedure and put timelines on the number of adjournments that can be given in civil proceedings, the issue of summons and the filing of written statements.

But the Supreme Court effectively killed these laws by suggesting that these are mere guidelines, not legal limitations.

Now, practically no time limits apply if a judge decides to endlessly prolong a case.

In the USA, a Sentencing Commission was established in 1984, which set guidelines for sentencing in similar cases, reduced the variability in judgments. But, here too, over time, the US higher judiciary diluted these guidelines so as to give judges greater leeway to use their individual instincts to decide cases.
Way forward

For greater focus, the Law Commission has suggested that the Supreme Court should be split into two, one being a constitutional court in Delhi, and the other being a final court of appeals in non-constitutional cases.

Source: This post is based on the article “Why the judiciary is failing?” published in Business Standard on 3rd May 22.

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