Monday, December 20, 2010

Making a case for fairer and speedier justice

This is an essay I wrote for the course 'Ethics in Governance in Business and Society'. At Great Lakes, it is taught by two eminent crusaders against corruption - Mr. Vittal, Ex CVC and Mr. Seshan, Ex CEC.

Making a case for fairer and speedier justice

Erosion of faith in judiciary
Judiciary, considered one of the three constitutional pillars of Indian democracy, is of late sullied by a stream of unpleasant news reports. Questions have been raised on the integrity of senior judges and their track records. People have long reconciled to the fact that politicians and bureaucrats are corrupt and have always looked up to the judiciary and the Supreme Court in particular for deliverance. But reports about Justice Soumitra Sen, YK Sabharwal, Dinakaran and many others in the media point to a deep seated rot in the judiciary that is slowly eroding this confidence of the Indian public. 

Need for urgent reform
Reams have been written about corruption in the legislature and measures to address it. For argument’s sake, if we do assume that all legislators come clean, where does this leave the corrupt judges? There is an urgent need to clean up the judiciary by means of radical reforms. Piecemeal changes won’t do. Considering the backlog of cases in the Indian courts and the lack of accountability of the judges, to be able to enforce law and order, justice should be seen to be fairly and speedily delivered. 

Abolition of Jury trials in India
In this article, I propose a change which would, in my opinion, make the process of justice more fair, democratic and quick. It is something, that democracies world over have embraced, but India abolished way back in 1960 after the landmark KM Nanavati V State of Maharashtra case – jury trials. The argument put forth during abolition was that the opinion of the jury is often biased by social norms, morality, ethics and values and an objective judgement based on set statutes is rarely possible. It was also believed that juries would be influenced by media and public opinion.

Changing times
Fast forward to today’s age – there is a gaping void in the number of judges we have to address the scores of cases pending in all the courts put together. The rich keep appealing and the poor keep waiting. It is a patently unfair system that visibly rewards the wealthy and gives the poor, only a distant and illusory hope. Very few judges have made their sources of income public even though there is a RTI act and few have surprisingly come out openly and admitted that, corruption at all levels is a fact. In this age of 24*7 live televisions, no judgment is immune to the influences of the electronic media and its commentators. 

We now have a thriving public society and laws that increasingly appear out of tune with the times. Laws on land reforms (SEZ issues), sexual rights (rapes and gay issues), organised labour and environmental concerns need to be constantly revisited in this dynamically changing scenario. 

In this context, I propose that we establish a system of trial by juries drawn from eminent members of the civil society. We should have a set number of juries for every district and a judge can appeal only once against the decision of the jury and he can decide only the quantum of punishment.

Argument against institutional rigidity
Amartya Sen in his work, ‘The idea of Justice’, says, “Institutional fundamentalism may not only ride roughshod over the complexity of societies, but quite often the self-satisfaction that goes with the alleged institutional wisdom even prevents critical examination of the actual consequences of having the recommended institutions. Indeed, in the purely institutional view, there is, at least formally, no story of justice beyond establishing the ‘just institutions’” This argument can be interpreted to mean that justice should move beyond a mere interpretation of rigid age old statutes. Indeed, in other parts of the book, with sufficient examples to boot, he mounts an attack on the ‘Rawlsian principles of Justice’. 

Need for citizen participation
In the context of human rights, Amartya Sen writes, “Active public agitation, news commentary and open discussion are among the ways in which global democracy can be pursued, even without waiting for the global state.” In the desire to interpret laws and accommodate appeals, there is simply a search for a “supreme alternative” and no ranking based on a “social point of view” This obviates the checks and balances, a participatory mechanism can bring in - a sad state of affairs for a culture built on the edifice of dialectics. When a jury decides, the sheer number of decision makers is more, humane aspects are given due attention and there is an alignment with the morals and values of the society. 

Addressing corruption, knowledge and trial by media
It is very difficult to sway the decision of a jury by influencing its members. The nexus between criminals and juries is again difficult to establish. So, chances of corruption are lessened by inbuilt mechanisms. Coming to the knowledge of the jury members, perhaps there might be technical limitations but the basic premises of what is fair and what is just remain eminently universal and can be hardly disputed. Regarding trial by media, one can never completely eliminate it in this age of information abundance. Let us learn to live with it instead of decrying the messenger. 

The example of recent adoption of the jury system by South Korea is a case in point. As we have successful democracies embracing this system, it is time we rethink the abolition and give the jury system, a chance. With the system in place, we might end up building a society where corruption free service becomes a fundamental right of its citizenry (Mr. Vittal’s proposal) even without the constitution explicitly saying so.

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