No one repairs a roof when the sun is shining, nor do we install flood defences during the summer. Serious rebuilding is only done during a storm. In politics, this is truer than in real life. Here is a government whose ‘honeymoon’ lasted less than the time it takes for an ice-cream cone to melt under a blazing Indian summer. It has faced criticism on inflation, the judiciary, Indians stranded abroad, minor misdemeanours by junior ministers and the Budget, which has been all over the newspapers. In other words, life is normal for a party newly in power.
There will be great temptation to become defensive or fight each crisis as it comes; drifting, but not swimming. Yet, there is a way to convert a crisis into an opportunity for initiating long-term reform. The one such challenge is presented by the controversy with the judiciary. Seize the hour to rethink the entire system.
Judicial reform has been long overdue. The Indian judiciary is short on staff, operates in outdated buildings, has a large backlog of around 3 crore cases. At the top, there has been a debate for sometime now, with a Bill pending before Parliament on whether to reform the collegium system of appointing judges. Any attempt to reform the judiciary by the executive runs into the accusation of compromising the independence of the judiciary. But the collegium system was not there at the beginning of the Republic and only evolved as a response to doubts about the executive after Indira Gandhi strangled the judiciary. The situation is now different, with judges being less accountable than ever before. The case for reform can thus be reopened at the very beginning of the new government whose large mandate is fresh in the minds of the people.
Instead of thinking about just the top appointments, we should think of overhauling the system to make it more people-friendly. Law’s delays only help the crooked and deny justice to the deserving. Thus the first reform must be to vastly expand the capacity of the judicial system to deliver quick results. This will require a roadmap to increase the number of qualified magistrates/judges by a factor of five. Not all the officials need be Western-style lawyers. They can be people who can arbitrate in disputes, the innovative Janata Adalats can be expanded. It was interesting to see how many people misread the Supreme Court’s judgment about fatwas. The point was not that all Shariat court decisions are invalid but that, if a disagreement rises, they are not legally enforceable. But many civil disputes can be settled in Shariat and other community arrangements if the disputing parties are happy to accept the decision. This will reduce the burden on formal courts. After all, India has one of the lowest ratios of judges per million people. Any innovation or use of older institutions which can help reduce the load should be explored.
When it comes to judicial appointments, it is time the closed shop of the judiciary making its own promotions should cease. There should be a judicial appointments commission which can take expert advice to do the job. There are considerations of balance as between gender, social status and regional representations, which must be taken into account by the commission. The UK has moved to such an arrangement and it is time India followed suit since the system is British in any case.
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Along the way can we also examine other remnants of the colonial system — India has retained all the institutions which the colonial masters set up. While the UK has moved on, India is stuck with the same old centralising, paternalistic culture 67 years after Independence. Whichever party is in power behaves the same, e.g. suppression of the Henderson-Brooks Report.
The arrangements for federal financial relations were set up in the Government of India Act, 1935.The Finance Commission is a legacy of that time. Why not have a permanent finance commission which can regulate Centre-state financial relations in a transparent and constitutionally legitimate way? If that means removing the Planning Commission from the scene, the better.