Justice in India
Overburdened yet overactive, Indias courts are failing to do justice
IT MIGHT seem natural for senior figures from three furiously sparring political parties to meet in front of a judge. Yet a recent case before Indias Supreme Court found three lawmakers fighting not against each other but against the law itself. They were arguing that a 156-year-old statute that holds defamation to be a criminal offence is both unconstitutional and a danger to free speech (which it is). The petition failed. A two-judge panels 268-page ruling on May 13th upheld the colonial-era law.
This was hardly the first time that Indias top judges have failed to oblige politicians. Universally frustrating yet desperately needed, the countrys courts are a paradox. The complexity of Indias federal system, with its relatively weak executive and a slow-moving Parliament, places an unusually large burden on the judicial pillar. Even more than in America, where judges can seem to legislate from the bench, Indias courts flex their muscles.
In recent months higher courts have tossed out legislation aimed at creating more public oversight of their own appointments, blocked a central government bid to impose direct rule on a state whose legislature had become deadlocked, and ordered the creation of a new agency to manage disaster relief, despite the existence of similar bodies already. They have ordered a state-owned airline to provide a service to a mountain resort, Shimla, on grounds of public interest, and have slapped a ban on the registration of big diesel cars in the capital, Delhi, until judges decide whether they pollute too much.
Small wonder that the finance minister, Arun Jaitley, of the ruling Bharatiya Janata Party, recently drew loud applause in Parliament by accusing courts of subverting other branches of government. Step by step, brick by brick, the edifice of Indias legislature is being destroyed, he warned. But in case anyone might think that the judiciary has it in only for the legislature and for big business, the Supreme Court recently demanded an investigation into wife-swapping among navy officers.
Yet for all its power, Indian justice remains erratic, opaque, undermanned and, above all, slow.
Last month T.S. Thakur, the chief justice, burst into tears at a public meeting that included the prime minister, Narendra Modi, as he pleaded for more resources. The statistics are indeed distressing. India has more than 22m legal cases pending, 6m of which have been stuck in the courts for five years or longer. (The Supreme Court nevertheless deals with 47,000 cases a year; Americas dismisses 8,000 a year and hears only about 80.)
To manage the huge caseload India has only 16,000 courtrooms and barely as many working judges14 of them per million people compared with 107 in America. As far back as 1987 a government-advisory body, the Law Commission of India, recommended a fivefold increase in the number of judges. That target has not remotely been reached. Thousands of existing judicial positions have remained vacant including, until this month, nearly half the jobs in higher courts and six out of the 31 judgeships in the Supreme Court itself.
Such manpower shortages do not just mean delays. They generate systemic miscarriages of justice.
A government report in 2014 revealed that two-thirds of the 400,000 inmates in Indian prisonswhere the official occupancy rate is 117%had yet to be convicted of any crime. It is also estimated that more than half of prisoners who could seek release on bail do not do so. Either they cannot afford it or they have not been made to understand that this is a right.
Mr Thakurs display of emotion seems to have had some effect. Critics of Mr Modis government had accused it of delaying the appointment of top judges out of pique at the Supreme Courts quashing of a bill granting politicians more say in the matter.
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