Earlier articles on Justice Delivery in India
here and
here.
In India, and to a similar extent in Pakistan, the Supreme Court frequently handles cases about relative trivia: child custody battles, bail for a crime related to trespassing, and so on.
There is no finality in Indian courts. A criminal trial or a civil case starts in the "lower court", then there is the "Court of Sessions" (or District court), then the High Court, a "bench" of the High Court, and then the Supreme Court, then a "Bench" of the Supreme Court. Even after the Supreme Court delivers its verdict on a case, one can file a "review petition", a "curative petition", appeal to the "President", appeal to the Supreme Court against what the President says. Frequently the Supreme Court will ask the litigant to again approach a lower court, and the merry-go-round starts again.
The laws in India are framed so broadly ("any", "whatsoever", "notwithstanding"), ambiguously ("public morality", "decency", "abetment", "incitement"), and subjectively ("hurting of sentiments", "outraging of modesty", "emotional cruelty"), that any lawyer worth his salt can question a judgment on a "point of law", a requirement if your case is to reach the Supreme Court.
Moreover, the High Courts of the country routinely diverge in their interpretations of the letter of the law. It is all good fun for the lawyers: Find a High Court judgment that contradicts some other High Court judgment on a similar matter (and it is not that difficult to do that, believe me), and rush to the Supreme Court.
Frequently the judgments in Indian courts offer no rationale, they are merely propositional, and while seeming to dispense justice, do anything but.
For example, there was recently
a case when a salaried man petitioned the Punjab and Haryana High Court to intervene because the government has been delaying his salary payment every month.
The High Court, justly I believe, summoned a high bureaucrat to explain the conduct of the government, generalizing the issue since this issue obviously affected a large set of people. But then, a "bench" of the High Court set aside its own Court's order and stated (emphasis mine):
Admittedly, during the pendency of the writ petition, the benefits claimed by the petitioner had been given to him. We are, therefore, of the view that when the grievance of the petitioner stood satisfied, the Single Judge should not have broadened the scope of the writ petition on the ground that the State of Punjab as well as statutory bodies had not been making payments in several other cases.
As the petitioner has already been granted relief, his writ petition is disposed of. The order dated March 12, 2013,by the Single Judge summoning the Chief Secretary, Punjab, is hereby set aside. Consequently, the appeal preferred by the State of Punjab is allowed."
Now I respectfully (since disrespectfully disagreeing with an Indian Court makes one a criminal) disagree with the Court's "view". To my limited common sense, the earlier order "broadening" the scope was eminently sensible. Just because a kidnapped child is returned later does not mean the original crime of kidnapping stands nullified. Just because the man got his salary eventually doesn't mean the government's delay can be condoned.
In any case, the "bench" doesn't offer any justification for its view. Just its view. And obviously there is no punishment given to the errant government. Quite typical. Is this justice which can satisfy a reasonable, rational man?
So, since the laws, the process and the judgments are all wishy-washy, our courts are clogged with reviews and revisions and appeals of trivial matters. The law can be said to be in the hands of the "lawyers" since, in the vast majority of cases, they can continue to appeal till eternity and delay any final judgment.
If you can afford a lawyer indefinitely, you can afford anything in India.
I have an inkling why the state and the judiciary are loath to change this dysfunctional system.
It is because the more law is in the hand of the lawyers, the more a case can remain in a "pending" state, and the more a rich and powerful person can evade a conclusive judgment against his interests. A poor man cannot afford a High Court or Supreme Court lawyer, and cannot travel every few weeks to the state or the national capital. But a rich man can hire a good lawyer, and be assured of fiddling with paperwork while Rome burns.
This system is to the massive advantage of a corrupt state and a corrupt crony capitalist class. They want this system of never-ending appeals to continue so that they can, with impunity and with ruthlessness, loot the country and flout whatever little spirit of law remains in our badly designed Constitution (more on that some other time).
The more one can spend money and evade rules which apply to others, the more unjust is a society and the more cynical its poor people.
India is dysfunctional by design and carefully kept that way. The more things change, the more they remain the same. The basic structure of our institutions is non-democratic and colonial.
The "problems" of India: Corruption, lack of transparency, paid media, non-democratic party politics, non-existent justice, are boons for the privileged.
That is why things will not change in a hurry. Lokpal ain't happening in a hundred years.
