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Executive-judiciary tussles over police reform indicate institutional malaise

The Indian Constitution belongs to the people who identified three clear goals: democracy, the rule of law and social justice including human rights. We are rightly proud of our Constitution. But the essence of a people based constitution is the working and receptivity of the institutions and processes created by the Constitution. If these fail, the working core of the Constitution erodes. Every day the news portrays vast erosions of constitutional governance. Institution after institution becoming suspect. Heinous murders in India were ignored by the police. The Jessica Lall case shows investigative and prosecutional failures. Custodial crimes continue to be reported to various human rights commissions. An overactive higher judiciary has confused judicial oversight with taking over governance. The lower judiciary shows ineptitude and corruption. When the press exposes the misadventures of the law, they are accused of 8216;trial by media8217;. Yet it is the media that has exposed failures of justice. Courts need to refocus on their inhibiting relationship with the media. The inner strength of an institution breaks down if its processes that are created by the Constitution fail. If we cannot address this question, we will end up singing the praises of public interest litigation and ignoring everything else.

Where shall we start? Parliament is visited with walk-outs and pays insufficient attention to legislation. The Opposition8217;s walk-out strategy has crippled the effective working of the Lok Sabha. The cost of running the Lok Sabha is Rs 11,22,829 per hour in 2006. There are reports that 19 hours over 10 working days were lost in the last session in December. A senior opposition member remonstrated to me that these disruptions are part of a live democracy. Yet, Parliament is where the real work gets done. But what happens to the parliamentary process? The first of the reservation amendments to the Constitution in 1995 was not debated in the Rajya Sabha at all except to request a retiring member not to make a speech. Periodic elections are critical. But is a Parliament of walk- outs what the Indian Constitution intended? Surely this must stop now. There cannot be mob tactics inside and outside Parliament.

An overprotected bureaucracy is responsible for taking a lot of judicial time in courts and tribunals but has protected itself by enacting the Single Directive to prevent even the investigation of cases against senior officers. The painful subversion of the rule of law becomes more painful if we account systemic failures in the judiciary that risk denting the democratic process 8212; beating up of judges in the Nadiad case, the failures in the Zahira matter, the astonishing maladversions in the Jessica Lall, and Priyadarshini cases. The courageous Neelam Katara is entitled to get justice without sacrificing every moment of her life for it. But she has no choice in the matter. Without struggle criminal justice is elusive. Corrective justice by higher courts can never be a complete answer to real justice by the lower courts.

The citizen is scared of the police. They are a law unto themselves. Several reports on the reform of the police have been ignored. In 2006, the Supreme Court gave seven directions to the Union and states. The directions went over the top. The Court failed to examine the legal and practical implications of implementing its own directions. On 3 January 2007, the states have not reported compliance to the Court as directed. Some of the objections of the states are valid. But the problem remains. The Court case may generate change; but it cannot guarantee it. The fact is that politics and the police have blocked change. Even a proper complaint system is not in place. The States have to put in place a proper police system by statute.

The lower judiciary is under stress and under-resourced, overworked and vulnerable. Praising the High Courts and Supreme Court cannot cloud failures of justice. Even the working of the Arbitration Act is fragile. The judiciary has taken on too much. It cannot run India8217;s forests and wild life by virtually surrendering power to a committee and examining the committee8217;s recommendations every other Friday by quickly running through a tight court schedule. Some interventions have given us CNG in Delhi. Some are within the Court8217;s gift. But can the Court direct linking of rivers, building of dams, saving of forests, stoppage of mining and the continuous monitoring of all these, for years on end? Judges are unelected custodians of the rule of law. They cannot hand-pick people to run the administration even while pursuing the necessary ends of social justice. Government by judiciary creates its own problems.

The Constitution Commission dealt with generalities. We need practical answers to practical questions. The Constitution will survive but constitutional governance depends on institutions working in a practical way. If that fails, constitutions start unwinding from the inside.

If India wants to develop an infrastructure to support a growing economy which is powered by the private and public sector but subject to the leprous decay of malgovernance, we will surely fail. Governance by institution depends on all our institutions working together in tandem without suffering surfeit or breakdown. Practical answers need to be found within more exact frameworks.

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In our ebullience, we should not overlook the fact that Constitutions can collapse from within.

The writer is a constitutional expert