Not So Fast, Learned Counsel

Fali Nariman must return to the solutions he suggests for the Indian judiciary

THE INDIAN LEGAL system is riddled with so many irrelevant laws, arcane procedures, perverse incentive systems, and a lack of capacity that it is often said that in India you don8217;t get punished after due process, due process is the punishment. Fali Nariman8217;s book is a genial, agreeably written tour d8217;horizon of the Indian judiciary, its ori-gins and weaknesses. The list of proposals he offers for its improvement is interestingly learned and various: Reduce proliferation of appeals, reduce the number of reported judg-ments, introduce plea bargaining, organise courts more efficiently, uphold high standards in the profession, give judges more truth-seek-ing powers, relax the laws on contempt, and so forth. But for all its remarkable erudition, this is very much a lawyer8217;s analysis of what ails the judiciary. And in so being, it fails to ask some hard questions about the judiciary that strike nonlawyers the most.

Nariman tries to gives a fairly balanced view of the successes and failures of the Indian judi-ciary, but in the end the judicial philosophy this book exemplifies is a kind of pragmatic ad hocism that portends an insidious danger. Take two of his specific proposals. He seems to endorse the suggestion that the 8220;reasonable doubt8221; burden should be relaxed in some cases, because the risks of letting the guilty off outweigh the risks of the innocent punished. This claim is based on two faulty premises. The first is the dangerous claim that individual rights can be subject to a logic of social utility, we honour them when it suits us; otherwise indi-viduals can be sacrificed to utilitarian calcula-tions.

This sort of rampant utilitarianism will be corrosive of a culture of rights. But more startlingly, what is the empirical evidence that relaxing the reasonable doubt burden will lead to greater justice or social utility? By the way, our data on conviction rates is not as bad if you take the ratio of trial to conviction rather than arrest to conviction.

He worries that judges have not used the wide powers available to it under Article 142, which gives the Court the power to do 8220;com-plete justice8221;. This argument is formally true. Courts have flip-flopped over the use of Article 142. But the idea that this has prevented the Court from exercising such powers as it deems necessary is less plausible. Nariman passes over more lightly the extraordinary way in which the Courts have broken through every constitutional, interpretive and prudential re-straint to arrogate excessive powers to them-selves. For instance, the process of judicial ap-pointments is the most untransparent of any set of appointments in India, yet the judiciary created its own power out of thin air. It is diffi-cult to imagine that a Court that routinely makes laws, transgresses the terrain of the ex-ecutive and the legislature, makes policy on a myriad of matters needs more propping up with an expansive interpretation of Article 142. No one in India is better equipped to ask some pointed questions about the judiciary.

Is its definition of its own role legitimate? Is it effective? What does one make of the relation-ship between the judiciary and politics? And finally, what does one make of the paradoxical fact that while the judiciary has tried to set the functioning of other branches of government in order, it has failed to assert itself when it comes to making its own functioning more ef-fective?

Nariman touches these questions, but only to elide over them, as if all that were required is a tinkering of a few laws here, an alteration of few procedures there, and if nothing else works, risk rights to the logic of utility. But this begs the question about why we as a society will not invest in our justice system, what the rule of law actually means for us, and why a disproportionate burden of judicial delays falls on the poor. It is also easy to get overawed with statistics about pen-dency rates in the Indian system, but the sim-ple truth is that, at least at the level of High Courts, there are sensible supply side solu-tions to the problem. But this requires think-ing institutionally, not merely legally.

Most of Nariman8217;s proposals merit serious consideration, though it is a pity that he does not dwell much upon one of his more impor-tant proposals: The creation of a judicial data-base that will promote greater accountability and clarity. Both the judiciary in its operations, and much of the writing on it, still exemplify the lament of the Supreme Court in P.N. Eswara Iyer, 8220;when awareness is absent, ad hocism is inevitable. Here, experiential evi-dence makes do for empirical research.8221; But till such time as we have a systematic study of the judiciary, Nariman8217;s book will remain an important point of departure.