The participation of LRS in the National Convention on Judicial Reform and Accountability to be held on 10th and 11th March in New Delhi is welcome.It is also heartening to see that LRS is listed as one of the Sponsoring Organizations and
a representative has been invited to make a presentation in the `Values and Attitude of the Judiciary towards the Poor’.
However, the background paper entitled `Reclaiming the Judicial System in India’ is less than satisfactory. In order to make a dent on the prevailing situation one has to go far beyond the mandate laid out in this paper. One definition of `reclaim’ from a standard on-line dictionary reads `to claim or demand the return or restoration of, as a right, possession, etc.’ Therefore to say that the Judicial System is to be reclaimed presumes that it once did belong. What is lacking also here is to who did it belong and how did it get here in the first place? It would be a truism to say that the Judicial system that is in place in the country is the continuation of the system that was instituted by colonial Britan. Indeed, the judiciary is a wing of the state that is, inter alia, supposed to maintain checks and balances on the system and to ensure that the laws of the land are respected, and in the event that the laws of the land are violated, the violators be brought to book. Indeed, the judiciary would find itself powerless to be anything but ‘anti-poor’ if the laws of the land are thus. One would say that such anti-poor activities of the Judiciary which is one of the thrust areas of the background paper is something positive as it is in the letter and spirit of many of the laws of the country!
The background paper does not recognize the fact that the ruling elites in India today have embarked on a course of emerging as an economic and military power, which has several consequences. The development of metro areas to suit the needs of these elites is a foregone conclusion. The references to Shanghai and Singapore that are frequent in the media has a definite content — the poor shall be pushed out of sight and out of mind, and the cities becomes ultra-modern posh metropolises. The laws on the books deem it such, and to lay the blame on the doorstep of the Judiciary for carrying out ‘anti-poor’ activities is only touching the tip of the gigantic iceberg that is the polity of the present day elites.
Therefore, one cannot shy away from the question of the law in the land and from where it comes. The Judiciary is one of the important creations of British Rule when they took over India as a crown possession. One of the important aims of the laws of the land was to ensure the supremacy of British interests in India, the the Judiciary as the arbiter of disputes between individuals, parties, and indeed the State and its subjects. After the transfer of power to the ruling elites of India in 1947, the Judiciary’s role has been to defend the supremacy of private property and its interests. The points of the background paper on judicial delays, plight of undertrials, the lack of accessibility of judicial redressal to the poor and needy are all beyond dispute. The important points missed in the background paper include the violation of rights of individuals, groups, and the nations that constitute India, to all of which the Judiciary is a willing or unwilling party. If the law so deems that there shall be ‘fast-track’ TADA courts, willy-nilly even after the scrapping of TADA, what choice does the Judiciary have but to go along? If today the Armed Forces Special Powers Act has on its books the provision that there can be arbitary detentions and arrests and searches, how shall the Judiciary deal with this except to go along with the provisions of the law? Indeed, if there are so many laws on the books that are openly anti-labour, e.g., the Essential Services Maintenence Act, how shall the working people meet their needs of justice if there are so many shackles on their feet? Why is it that despite the fact that all these laws violate the principle of natural justice, they continue to be on the books? What is to free the Indian people from such repressive laws? How is it that security forces around the country can merrily liquidate individuals here in the name of combating terrorism, and there in the naming of combating naxalism, and elsewhere in the namely of crushing insurgency? Should these not take precedence before, or at the very least concurrence with debating the question of Judicial Reform as the primary question facing the people at this time? In light of these examples, thinking individuals and parties must ask can mere Judicial Reforms get the beacon of justice to the Indian people, or is it that the latter can result only from a thorough going transformation of Indian society.
One other matter to deal with is the question of why despite so many years of supposed independence, why the Indian mind is still trapped in Eurocentric notion of rights of individuals and of peoples. What was the notion of rights and duties inherent in Indian society, and the concomitant notion of justice? Do we not require modern and engaging definitions of all these concepts that will free the people of India from their condition of enslavement?
It is my fervent hope that the National Convention will be a place where many of the issues raised in this submission to the ‘Views’ section of the LRS page will be actively debated.
by B. Ananthanarayan