Now, none other than Supreme Court Chief Justice SA Bobde also has pointed out that there is a need in the judiciary to "invoke self correcting measures". He was speaking at the inauguration ceremony of the new building of Rajasthan High Court and added "Justice is never ought to be instant. Justice must never ever take the form of revenge".
It is not for the first time that such criticism emanates from judges of the level of Supreme Court themselves. But the question is how far the issues have been resolved. The country even witnessed an incident in which four supreme court judges, in an extra-ordinary step, held a press conference as a means of self-correction. But after one of those judges, Justice Ranjan Gogoi became chief justice, the methods craving for correction only increased in number. More than the procedural aspects, only when sense of justice and fearlessness become the cardinal features, can the judiciary offer, and guarantee providing justice. The country will be convinced of that only if the judiciary asserts its strength in times when the executive wields greater strength. There is a comparison cited by senior advocate Sanjay Hegde. In 1991, during a case trial, Shabnam Lone, a junior advocate was caught by Delhi police on charges of terrorirst acts. The court immediately heard his complaint, allowed a habeas corpus petition following which he was produced before the court and granted bail. (Lone's case then was argued by Arun Jaitley). On the other hand, when P Chidambaram was recently arrested, the court stopped short of intervening. When chief justice Bobde crticises 'instant justice' what he means may be mob assaults and encounter killing. And there is substance in the argument that those acts are more prompted by the delay in dispensation of justice and the resultant loss of people's trust in the judiciary. But isn't it also true that the malady that has afflicted our justice system is not that simple? Isn't it a fundamental weakness of the judiciary that it does not have a clear vision about how to respond to a social milieu that forces an approach against the spirit of the constituion, and compels it to give judgements based on extra-constitutional criteria?
It is as much true that revenge does not constitute justice, as that when there is fear in the judiciary, justice will not be possible. For fearlessness is a pre-requisite and guarantee of judicial independence. Absent that, such judgements are compelled to be made as are in line with 'social conscience' or to 'satisfy public consciousness'. Judiciary had confessed about being overpowered by fear during the Emergency. Even today such an introspection is warranted. And fearlessness should exist not only among the judges. If a tortured girl is afraid to lodge a complaint with police, it is a failure of the criminal justice system. The series of threatening witnesses and coercing them to retrace their statements happen because of this systemic failure. The phemomenon of a person being attacked on the way to court to make a statement, symbolises the failure of the judiciary too. The girl who was subjected to gang rape in Unnao, was set ablaze by the accused while he was out on bail and she was going to the court to give her statement. The result of this is not only that victim is liquidated, but also that thenceforth no victim would dare to make depositions. And that would represent a more worrying failure of the judiciary. Also to be recalled is the attempt to murder a victim on the way to the court in Lucknow, made in the rape case charged against MLA Kuldeep Singh. Seeing such attacks as acts against just the victims would be an oversimplication. Threatening witnesses, and attacking those going to make statements are challenges to the very judicial system of the country. Shouldn’t the judiciary address this phenomenon urgently? And more pertinently, is there is any point in expecting governments that see mob justice as an adornment, to come up with corrective measures?
An effective starting point of corrective steps would be that the judiciary recognizing that there is covert 'lynching' happening at all stages from lodging complaint with police through enquiry and trial right up to the dispensation of punishment. When ordinary citizens have to live in fear of individuals and groups, it is for the judiciary to free them from this fear using its powers. We have the context of two recent situations the judiciary should be set thinking on: the perception that in the cases related to the note-ban and Kashmir, citizens were not empowered with fearlessness and that in the verdict of the Babri land suit the court itself was working under some fear. The state of affairs when the culprits can afford to be nonchalant, and the victims are gripped by fear, would signal the collapse of the state. It is the judiciary that can make meaningful intervention to obviate such collapse.
There will be no two opinions about the chief justice's remark that justice should be accessible for the common man. For that to happen, the cost of running cases should be brought down significantly. Justice that can be secured only at a huge cost and effort is ipso facto incomplete justice. Millions of people are being made to reconcile to injustice only because they lack the money to defend themselves. It is equally important that justice should not be delayed; as everyone knows the principle that justice delayed is justice denied. But the number of cases pending over years in the country has reached three crore. And a huge number of undertrials are still languishing in prisons. In 2016, the then chief justice TS Thakur had literally cried and pleaded at a function with prime minister Modi in attendance that the number of judges be increased. The central government had said 32 years ago, i.e. in 1987, that 40,000 judges were needed and appointments would be made to meet that need. But even today the total number of judges across the country is below 8,000. It may be possible to meet the numerical target; it may also be possible to reduce the cost of litigation. But when can we make the entire judicial system – from plaintiff to judges – independent and free from fear?