Justice Delayed is Justice denied.
“The Rule of Law and maintenance of order is the science of governance” - Kautilya’s Arthashastra, 4th century B.C.
While Justice delayed is justice denied is a
legal maxim of the common law, which traces its origin in the west, as we can
see from the above quote, that the principles of justice were laid out in the ancient
Indian tradition of governance as well! While the scope of the maxim is very
wide and can be argued from various standpoints, for the purpose of this essay
we will focus on the social and economic impact of justice delayed and its
consequences on the society from the stand point of India.
Data on
the pendency of cases in India:
As of March 2021, 4.06cr. Cases are pending in
all the courts put together, out of which 3.51cr or 86% of the total cases are
pending with the lower courts, 57lcs cases or 14% or pending with the high
court and remaining 66 thousand with the apex court. Charts for the cases
pending in lower courts and high courts is presented below. Also, important to
note is that out of the total pending cases 3.08cr. cases or 75% of the cases
are pending for over one year. (Source
NJDG)
Data in lacs.
Data source in both charts (NJDG- latest
available on site)
While the average time to dispose of cases in
India is 2.5yrs according to the data in economic survey 2019-20, whereas
European commission on efficiency of justice shows time disposal of justice in
Europe at 5 months on an average for the data as of 2018.
Social Impact: We as a country in 2012 were all
shocked with the news of a brutal gang rape in Delhi, now famously known as the
“Nirbhaya” case. That case shocked the conscience of the society at large and
even led to enactment of death penalty in such heinous crimes. The case went on
and Nirbhaya finally got justice, but the case took 7 long years to reach its
logical conclusion and while justice was delivered it was certainly delayed.
The case can cannot be seen in isolation, if we have to emphasis the
importance of speedy justice delivery.
Let us look at a similar case that happened in
2019 in Hyderabad with a vastly different outcome. In this case the cops
carried out the encounter of the 4 people involved in the crime, not waiting
for the court verdict to be delivered. The society at large favored the police
action. Pertinent to point out is that the final judgement in the Nirbhaya case
was still pending, for the crime that had happened in 2012. Arguments used by
people to justify the encounter was that with all the procedural delays
witnessed in the Nirbhaya case, it is only proper on part of the police to act
in the manner as they did as long as the ‘justice’ was delivered.
The two cases when seen together emphatically
put across the point that “justice should not just be done, it must be
perceived to be done as well.” The society as a whole needs to feel that
justice is delivered on time, so that it does not celebrate such extra judicial
acts of the police and administration. The same was case with the crime solving
in Mumbai in the 90’s, or current state of affairs in states like UP. When the
society as a whole stops feeling that justice is for the common people and will
be delivered to them in the time bound manner, society starts to make hero’s
out of cops that clearly, ‘bend’ or ‘break’ the very rules they are meant to
safeguard.
Economic
Impact of delay in justice: Enforcement of contract is one of
the most critical aspects of “Ease of doing business” indicators published by
World Bank. India’s rank in this parameter is 163 as per the EODB report of
2018, even if its overall ranking has improved significantly. It is argued in
various papers that the economic impact of the delay in Justice Delivery is
huge and might be costing about 0.5% of the GDP to India on account of this
delay.
The
principle of “Matsyanyaya”: Going back to our ancient texts on
governance, Kautilya has in his Arthashatra argued about the concept of
Matsyanyaya (Law of the fish/ Law of jungle.) The principle states that, in the absence of
the state not enforcing the contracts and justice, the big fish will always end
up eating the small fish. In today’s parlance the same concept can be
understood in the context of crony capitalism, were a clogged justice system
and pendency and delay in cases help only the very rich, who can then access
the justice system and in some cases manipulate laws to favour them, pushing
the small business, local business and MSMEs at an absolute disadvantage. Thus,
the system does not produce an environment that encourages new risk taker to
try out new businesses, deploy new technology and even denies access to formal
credit system. The entire system is thus skewed in favour of a select few at
the cost of many.
Prior to “insolvency and bankruptcy code”
passed by the parliament in 2016, India did not have a proper frame work for
resolution of stressed cases, there by leading to warehousing of this bad
assets, which ballooned in after the 2008-09 financial crisis leading to the
crisis in India’s financial system from the year 2013-14. It took 3 RBI
governors and 3 trillion rupees from the exchequer to take the public sector
banks out of this crisis. While the IBC
is a step in the right direction, in one of the cases like the recently
concluded Bhushan power and steel case, which took 3.5 yrs. to conclude and
which will be likely challenged by erstwhile promoters, even as implementation
of resolution process has started by JSW steel with the creditors, shows that
even a law like IBC with clause for time bound resolution of cases can be
caught up in litigation.
Also, cases like AGR, and cases of
retrospective taxes like Vodafone case, introduced in 2012 that ran for almost
a decade, the case which central government lost not just in the Supreme Court
but also in the international court. In AGR case as well, the delay in the
judgement and the arbitrariness of the judgement ended up costing the entire
telecom sector a decade to regroup consolidate and a once vibrant sector with
many companies, forced to wind down business, Vodafone almost exiting Indian
market and overall bad name for India in the international market as business
unfriendly destination.
These are just a few cases to highlight the
problems in the justice delivery system that have a huge financial cost on the
Indian economic system. Harish Salve ones said, “Supreme Court is to be squarely
blamed for the current economic slowdown. In an interview to a news website,
Salve has said that the slowdown began with the top court’s judgment in the 2G
spectrum case in 2012. Salve said the apex court knocked out billions of
dollars of foreign investment with a stroke of the pen with its judgement on 2G
and coal allocation cases. The Supreme Court in 2012 had cancelled 122 spectrum
licences granted to eight companies. In 2014, the court also struck down all
but four of the 218 coal block allocations from 1993 to 2011.”
Conclusion:
In conclusion from the above examples and the data provided we can conclude
that the legal system is one of the important pillars on any functioning
political, economic and social system and justice delivery plays an important
source for maintaining law and order in thriving economic system. India clearly
is facing a huge problem with this pillar of the state not functioning to its
potential. The pandemic has actually extenuated this problem even further.
Solution to the problem: Even
if the problem looks grave on paper for India, closer interpretation gives us
the following answer. “Much of the problem is concentrated in the
district and subordinate courts. Contrary to conventional belief, however, the
problem is not insurmountable. A case clearance rate of 100 per cent (i.e. zero
accumulation) can be achieved with the addition of merely 2,279 judges in the
lower courts and 93 in High Courts even without efficiency gains. This is
already within sanctioned strength and only needs filling vacancies. Scenario
analysis of efficiency gains needed to clear the backlog in five years suggest
that the required productivity gains are ambitious, but achievable. Given the
potential economic and social multipliers of a well-functioning legal system,
this may well be the best investment India can make.” (Source Economic survey
of India 2019-20.) The pandemic, even as it has caused many problems, also opened up the
possibilities of leveraging the online justice delivery mechanism. The new
technologies like AI and block-chain can be used to leverage tech led justice
delivery specially in the lower courts, where our system is jammed the maximum.
Thus, Indian judiciary should seriously
introspect the aspect of time bound justice delivery and chart out a mechanism
to deliver speedy justice to the country to live up to its motto of || यतो धर्मस्ततो जय: ||. (where there is rightiousness there is vitory)
References used:
Economic survey 2019-20: For statement of
Kautilya, statement used in conclusion para, and data for average age for
disposal of cases in India and comparison with Europe, principle of Matsyanaya,
EODB data.
Arthashastra: The law of governance,
penguin books. Quotes of Kautilya (primary source.)
https://www.indiabudget.gov.in/budget2019-20/economicsurvey/doc/vol1chapter/echap05_vol1.pdf
NJDG data for pending cases dashboard.
https://njdg.ecourts.gov.in/njdgnew/?p=main/pend_dashboard
https://njdg.ecourts.gov.in/hcnjdgnew/?p=main/index
Bhushan power and steel case: https://www.thehindubusinessline.com/companies/jsws-conditional-acquisition-plan-gets-the-nod-of-bhushan-steel-lenders/article33999859.ece
Harish Salve statement on court judgements https://economictimes.indiatimes.com/news/politics-and-nation/supreme-court-responsible-for-current-slowdown-in-india-senior-lawyer-harish-salve/articleshow/71168723.cms?from=mdr
Data for pending cases at Supreme court. https://main.sci.gov.in/statistics
Hyderabad rape case: https://economictimes.indiatimes.com/news/politics-and-nation/all-4-accused-in-hyderabad-gang-rape-murder-shot-dead/articleshow/72393178.cms
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