Dear Honourable Chief Justice of India,
I write to you as a believer in the extraordinary moral enterprise that is the Republic of India. I have always believed that our republic presents the best hope for the well-being and development of all its citizens. I have always argued that “frequently imperfect application, repeated attempts at its perversion and creeping cynicism about its effectiveness must not prevent us from recognising that the Constitution of India offers an enlightened way for us to organise our society and ensure the greatest welfare of all citizens.”
Sir, the custodial killing of accused rapist-murderers by the Hyderabad police suggests that the Republic itself is in crisis. Not only because of what the police officers did, but because of the widespread public approval of their action. From Parliament to casual conversations, from national celebrities to auto-rickshaw drivers, we found open calls for the accused to be put to death. There was no mention, no patience, no faith in due process of law.
To me, this suggests that a large number of Indians have lost faith in the judicial system. They had started developing a creeping cynicism towards the police and the law enforcement machinery of the state a long time ago. But now, their cynicism extends to the judiciary, including the highest courts of the land. If people could expect that criminals would be apprehended, prosecuted and punished in a reasonable period of time, they would not so readily approve of rough and ready measures in the name of justice. By demanding the killing of the accused, and applauding the police after the deed was done, people have revealed what they really think of our formal judicial system.
They do not think it works.
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Sir, the Preamble of our Constitution declares that justice is the first thing that the state seeks to secure. Yet, it appears now that power is all that matters. The poor and the weak cannot even get an FIR registered at a police station while the rich and powerful can occupy high public office. The weak can be bumped off by the state while the privileged can set up independent states on private islands. The rich can avoid arrest but the poor languish in prisons for years as undertrials. Cases can be withdrawn when criminals acquire power, so acquiring power seems to be the best defence against legal charges of any kind. To any neutral observer, sir, it is clear that we are ruled by power, not by the rule of law.
It is unfair to blame the judiciary for all this mess. The police force in most states lacks the capacity to conduct reliable investigations and the prosecution is both under-resourced and overstretched. Yet, a part of it is indeed the fault of the higher judiciary. We know that you and your colleagues on the bench are overstretched, under massive workloads, and work under severe constraints.
But by entertaining absurd petitions, legislating from the bench, intervening in the executive domain, and succumbing to popular opinion, you have not been able to stand as the unflinching upholder of the Constitution. Despite being aware of the judicial backlog in the higher judiciary and the reasons for it, you have not initiated any reform to make justice delivery speedier and more efficient. There are civil society groups with the expertise and resources who are ready to help you with this, but you are too preoccupied to utilise their services.
When politicians promise “fast track” courts and order the police to ensure ‘fast track’ justice, they are merely strengthening the public perception that the judiciary is not credible. Justice abhors a vacuum, which is filled by local thugs, khap panchayats, mobs, political leaders and a police force acting outside the law. All these are not only challenging the majesty of the law, they are directly challenging your authority.
It is within your power, sir, to restore public faith in the judiciary, the Constitution and the Indian republic. There are many things that the Supreme Court of India could do. But if you initiate a process to reduce the backlog and set reasonable time limits for the conclusion of new cases, it will send a signal that the judiciary shares the people’s concern. It can galvanise the police, prosecution and the legal community to get their acts together. The process might take a few years, but it is important to take the first step. You, along with the Chief Justices of the various high courts, can help rescue the republic.
Your speech at Jodhpur, sir, makes it amply clear that you are concerned about the problem. The solutions are also known. The Hyderabad police encounter injects an almost existential urgency for action. For the republic’s sake, sir, please act now.
The author is the director of the Takshashila Institution, an independent centre for research and education in public policy. Views are personal.