History, Challenges and Significance of the Indian Judiciary

Dr Kulmeet discusses India’s judicial system’s historical context, democratic resilience, challenges to judicial independence and the importance of accessible courts for societal well-being, exclusively for Different Truths.

Here are Dr Kulmeet’s reflections pertinent to the Indian judicial system, wiz-a-wiz Justice Chandrachud’s article, “Judiciary’s key challenge is to remove barriers to accessing justice, says CJI,” in the Indian Express on the Independence Day (Link: Judiciary’s key challenge is to remove barriers to access justice, says CJI | India News – The Indian Express)

CJI Chandrachud emphasised the need for accessible and inclusive court infrastructure while addressing the Supreme Court Bar Association (SCBA).

Kudos for progressing with journalism of courage – always. Here’s Dr Kulmeet’s short rejoinder, an effort for an ordinary citizen to express his opinion.

Judges will instill confidence when their actions are influenced by social-political pressure, free of bias. This is earnestly far from the truth and manifests a longing for our utopian and Gandhian principles in an idealistic mind.

The CJI Chandrachud’s premises can be surmised as under:

1. The Constitution has charted out a transformative potential for the nation.

2. The constitution recognises the perils of democracy and the consequent loss of national unity.

a.      Strachey (a master of Indian strategy in England in the late 1880’s) in his book, India, summarised and stated that India was merely a label of convenience. A name given to several countries in a great region. He emphasised that is what will never make India happen. He envisaged countries like Scotland, the Netherlands, Spain, U.K, Wales etc. Scotland is more like Spain, than Bengal is to Punjab or Tamilians are to Delhiites. He rationalised that there was no Indian nation or country in the past nor would there be one in the future. These were the historical judgments of a very erudite member of the Governor General’s counsel, and he lectured extensively at Cambridge University.

b.     That the Indian National Congress, which started as a discussion and idea exchange debating club moved on to become a mass national Indian movement to a behemoth that forced the British to quit due to leaders like Gokhale, Tilak, Gandhi ji (the most significant) Nehru and Sardar Patel and each Indian being involved in it. Be it a Hindu, Bengali, Punjabi, Muslim, Tamilian, Maharashtrian, Odiya, or Bihari. Religion and state are often intermixed in Indian nationalism. Whenever we have progressed, it has always been as one entity and never as a divided nation – our strong, sacrosanct belief is unity in diversity.   

The irony is that one of the main movers of the thought of India in the Indian National Congress was an official of the colonies of Scottish ancestry A.O Hume. Much has been made of the pessimism of Churchill and Rudyard Kipling pertinent to India being an independent nation.

Churchill built his floundering career in politics by being against the concept of India as an independent nation, since 1930, when he was trying to establish his foothold in British politics. Much like the contemporary pseudo-nationalists lurking in every corner of our nation today.

Now that the 17^th Lok Sabha is active and functioning the naysayers are history.

3. India’s model of constitutional democracy has been the best at times – in the way it responded.

The Indian model of democracy is sustainable only because the holders of the Constitution have been men of impeccable honesty. We owe it to men like ML Nehru, Mr Justice JML Sinha, Advocate General, YKS Chaudhary, his son, Yatindra, KL Mishra, RS Pathak, and Purushottam Das Tandon. These are from my hometown (Prayagraj). Extrapolate that to the whole nation, and you get gems, who worked extensively to lead to India being India, despite so many obituaries being written.

The foremost amongst them were historically: Mr Justice Sir Syed Fazal Ali, Mr Justice N. Chandrashekar Iyer, Mr Justice, Natwarlal Harilal Bhagwati, Mr Justice Syed Zafar Imam, Mr Justice A. N. Grover, Mr Justice P. Jagan Mohan Reddy, Mr Justice VR Krishna Iyer, Mr Justice AP Sen, Mr Justice Baharul Islam, Mr Justice A. Varadharajan, Mr Justice TK Thommen, Mr Justice Kuldip Singh, Mr Justice DY Chandrachud, Mr Justice RM Sahay, Mr Justice Yogeshwar Dayal, Mr Justice GT Nanavati, Ms Justice Ruma Pal, Mr Justice Shivraj V. Patil, Mr Justice Markandey Katju, Mr Justice Cyriac Joseph, Mr Justice Aftab Alam, and Mr Justice Prafulla Chandra Pant.

4. Since each institution contributes to democratic governance in terms of constitutional roles assigned to it, the roadmap of every institution as of now, and in the future, is in moral constitutional limits.

Observations can be made in one flow of thought.

Threats to the independence of the Supreme Court have been there, well chronicled historically, some judges resisted, and some succumbed, these have been written about. The rationale of the Indian democracy has been successful. Protection of Civil Liberties, the Golak Nath (1967) and Keshavande Bharti (1973) cases, the most recent and most significant being the appointment of judges to the high court and supreme court.

The Constitution says that the President of India will appoint judges to the Supreme Court and High Court after consultation with the Chief Justice. The consent of the chief justice is implied. However, the Parliament predisposes and proposes to bring in a law, leading to the Parliament, being a final arbitrator in the selection of judges, this shall be a death knell.

Seniormost judges of the S.C. in an unprecedented press conference against the then-Chief Justice (2018) highlighted the significance of a potentially dangerous flashpoint in the history of Indian democracy. That Justice VY Chandrachud managed the crisis that landed on his desk on the first day of his taking over is a commendable balancing act.

The Union Law Minister’s outburst and the Vice President’s opinion on the national judicial commissioner. The appointment of Mr. A.N. Ray, the second case judgment, authorised by Justice Verma and eight other judges finally stated that consultation, concurrence, and confirmation, were the same. Mr NV Ramana’s tenure ended virtually on the day when Mr Rijiju talked of a lack of crystal-clear clarity in the collegium system of appointment of judges. This potentially politically biased statement damages the core of democracy.  

5. Courts are meant to protect individuals and groups against societal injustice and anti-establishment groups (true to their cause) and organisations.

6. The greatest challenge that the judiciary faces is to eliminate barriers to the accessibility of the courts.

The answers and very viable solutions to the horrific experience of reminding one of the traumas that an Indian faces in the court in the forms of corruption, longevity in delivery of justice, cost of litigation, and the chicanery of lawyers to name or few.

This remains the most excruciating example of torture comparable to the ones observed in the Spanish Inquisition. One day visit to the Tees Hazari court shall convince the Lordships of the veracity of the statement.

Four hundred million (litigants and their families) are affected by the daily chaos of disorganised Indian courts. I believe, as I am told, that Justice Chandrachud’s courts are a model of efficiency. This should be extrapolated downwards in the pyramid to help the ordinary, poor citizens.

There was this recent case of political vendetta being settled amicably by the Supreme Court in an exemplary manner. Let that be a rule rather than an exception.

I am a doctor and we do get up at night for emergencies even at the ripe old age of 65. Work is work and should be treated as such.

No arm of Indian democracy is holier than thou – diligence should be the quality looked for and appreciated.

Our democracy is passing through a phase when the great God has let loose a thinker in India.

And, on God’s side is a majority who knows the rituals, chauvinism, and chest-thumping rather than about the good lord himself.

Picture design by Anumita Roy