How justice is delayed and denied in India
Tuesday, 11 September 2007
Jo Johnson
ASKED to rule on a land dispute that has been stuck in the Indian legal system for half a century, the Supreme Court of India last week finally snapped. Noting that the country's courts had seized up beneath a backlog of millions of cases, many of them decades old, it expressed "serious concern" for the rule of law in India. "People in India are simply disgusted with this state of affairs and are fast losing faith in the judiciary because of the inordinate delay in disposal of cases," the bench, consisting of justices A.K. Mathur and Markandey Katju, said.
For a country that never tires of describing itself as the world's largest democracy, the court's calamitous warning has come none too soon.
Filed in 1957 by a farmer who is long dead, the case droned on across the decades, consuming lawyers and litigants alike. "This scarecrow of a suit has in course of time become so complicated that no man alive knows what it means," the justices said, quoting Dickens' fictional description of Jarndyce and Jarndyce in Bleak House. "Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties [to it] without knowing how or why. It drags its dreary length before the court, perennially hopeless."
India's judicial system has failed to keep up with the accelerating economy. The number of cases pending before the Supreme Court stood at 43,580 in June, up from 19,806 in 1998. There are 3.7m cases lodged in the high courts and 25m in lower courts. The World Bank ranked India 173rd out of 175 countries for contract enforcement last year, ahead only of Bangladesh and Timor-Leste. An employment termination dispute can take 20 years to resolve. It takes on average 3.9 years to enforce a contract, compared with less than 10 months in China. Costs eat 40 per cent of a claim's value.
Poor contract enforcement in India is emerging as a barrier to investment and a speed-breaker in the way of Chinese-style double-digit growth, a fact politely pointed out by John Snow on his visit to India as US Treasury secretary in 2005. One reason India poses little near-term threat to China's manufacturing dominance is its failure to attract investment in infrastructure. Excruciating contractual disputes in the energy sector have led to chronic underinvestment in new electricity generation and power shortages.
If the system were just slow, the crisis would not be so acute. The trouble is that while the Supreme Court may be clean, corruption is rampant in the rest of the system. In 2005, the Centre for Media Studies estimated that the public paid about $580m in bribes to lawyers, police and court officials in an average 12-month period, often to slow down paperwork in a largely uncomputerised, poorly funded and understaffed system. The courts serve those who benefit from the status quo, including the quarter of MPs in New Delhi who have criminal charges pending against them and little interest in promoting judicial reforms that might expedite their trials.
Tough sentences given to two Bollywood stars last month - five years' imprisonment for Salman Khan for shooting a protected gazelle in 1998 and six years for Sanjay Dutt for illegally possessing firearms in 1993 - may mitigate widespread anger at the emergence of a two-tier justice system. But there is still far to go to restore public confidence, particularly among low-caste, tribal and minority groups. Failure to convict the well-connected Hindu nationalist fanatics responsible for the deaths of as many as 2,000 Muslims and other minorities in the 2002 Gujarat riots has done most to challenge India's self-image as a bastion of human rights and democracy.
Denied access to justice, many Indians rely on extra-judicial remedies. One reason the Naxalite insurgency extends to 165 districts in 14 states, covering close to 40 per cent of the country and affecting 35 per cent of the population, is that the Maoist rebels operate people's courts that dispense something approximating justice. Manmohan Singh, India's prime minister, has termed Naxalism the "single biggest internal security challenge facing India". Citigroup last week noted that the Naxal threat had spread from mineral-rich states such as Orissa, Chhattisgarh and Jharkhand to the outskirts of Bangalore, with an economic impact that could be "far-reaching".
In the 60 years since independence, India has pulled off the extraordinary feat of sustaining a regime of constitutional liberty with vigorous judicial protection of human rights in a large, poor and diverse society. This has been, as the US-based academics Marc Galanter and Jayanth K. Krishnan put it, one of the "epic legal accomplishments of our time". The tragedy is that this achievement is now at risk. As last week's Supreme Court ruling indicates, India's legal system, often portrayed as one of the country's greatest strengths, is in reality on the verge of turning into one of its greatest handicaps.
...............................
Under syndication
arrangement with FE
ASKED to rule on a land dispute that has been stuck in the Indian legal system for half a century, the Supreme Court of India last week finally snapped. Noting that the country's courts had seized up beneath a backlog of millions of cases, many of them decades old, it expressed "serious concern" for the rule of law in India. "People in India are simply disgusted with this state of affairs and are fast losing faith in the judiciary because of the inordinate delay in disposal of cases," the bench, consisting of justices A.K. Mathur and Markandey Katju, said.
For a country that never tires of describing itself as the world's largest democracy, the court's calamitous warning has come none too soon.
Filed in 1957 by a farmer who is long dead, the case droned on across the decades, consuming lawyers and litigants alike. "This scarecrow of a suit has in course of time become so complicated that no man alive knows what it means," the justices said, quoting Dickens' fictional description of Jarndyce and Jarndyce in Bleak House. "Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties [to it] without knowing how or why. It drags its dreary length before the court, perennially hopeless."
India's judicial system has failed to keep up with the accelerating economy. The number of cases pending before the Supreme Court stood at 43,580 in June, up from 19,806 in 1998. There are 3.7m cases lodged in the high courts and 25m in lower courts. The World Bank ranked India 173rd out of 175 countries for contract enforcement last year, ahead only of Bangladesh and Timor-Leste. An employment termination dispute can take 20 years to resolve. It takes on average 3.9 years to enforce a contract, compared with less than 10 months in China. Costs eat 40 per cent of a claim's value.
Poor contract enforcement in India is emerging as a barrier to investment and a speed-breaker in the way of Chinese-style double-digit growth, a fact politely pointed out by John Snow on his visit to India as US Treasury secretary in 2005. One reason India poses little near-term threat to China's manufacturing dominance is its failure to attract investment in infrastructure. Excruciating contractual disputes in the energy sector have led to chronic underinvestment in new electricity generation and power shortages.
If the system were just slow, the crisis would not be so acute. The trouble is that while the Supreme Court may be clean, corruption is rampant in the rest of the system. In 2005, the Centre for Media Studies estimated that the public paid about $580m in bribes to lawyers, police and court officials in an average 12-month period, often to slow down paperwork in a largely uncomputerised, poorly funded and understaffed system. The courts serve those who benefit from the status quo, including the quarter of MPs in New Delhi who have criminal charges pending against them and little interest in promoting judicial reforms that might expedite their trials.
Tough sentences given to two Bollywood stars last month - five years' imprisonment for Salman Khan for shooting a protected gazelle in 1998 and six years for Sanjay Dutt for illegally possessing firearms in 1993 - may mitigate widespread anger at the emergence of a two-tier justice system. But there is still far to go to restore public confidence, particularly among low-caste, tribal and minority groups. Failure to convict the well-connected Hindu nationalist fanatics responsible for the deaths of as many as 2,000 Muslims and other minorities in the 2002 Gujarat riots has done most to challenge India's self-image as a bastion of human rights and democracy.
Denied access to justice, many Indians rely on extra-judicial remedies. One reason the Naxalite insurgency extends to 165 districts in 14 states, covering close to 40 per cent of the country and affecting 35 per cent of the population, is that the Maoist rebels operate people's courts that dispense something approximating justice. Manmohan Singh, India's prime minister, has termed Naxalism the "single biggest internal security challenge facing India". Citigroup last week noted that the Naxal threat had spread from mineral-rich states such as Orissa, Chhattisgarh and Jharkhand to the outskirts of Bangalore, with an economic impact that could be "far-reaching".
In the 60 years since independence, India has pulled off the extraordinary feat of sustaining a regime of constitutional liberty with vigorous judicial protection of human rights in a large, poor and diverse society. This has been, as the US-based academics Marc Galanter and Jayanth K. Krishnan put it, one of the "epic legal accomplishments of our time". The tragedy is that this achievement is now at risk. As last week's Supreme Court ruling indicates, India's legal system, often portrayed as one of the country's greatest strengths, is in reality on the verge of turning into one of its greatest handicaps.
...............................
Under syndication
arrangement with FE