Let me begin by answering the above question bluntly: India is a kritocracy (also kritarchy) and an unacceptable one at that. On March 3, 2020 there was a cryptic report in Janmabhumi Daily that shared the concern of the Chief Justice of India, Mr. S.A. Bobde, on how the judiciary was stressed by media reports criticizing the judiciary. It was made in the context of an advocate arguing for considering petitions against some allegedly inflammatory speeches made by some BJP leaders, on priority. The CJI also remarked that the judiciary does not have any control over events when they are happening, and can intervene only once the event has taken place.

The same day, The Indian Express carried an article by advocate Dushyant Dave

(https://indianexpress.com/article/opinion/columns/delhi-riots-high-court-fir-kapil-mishra-anurag-thakur-hate-speech-firs-against-bjp-leaders-6296121/). Dave argued that:

-        Judiciary should have acted with greater alacrity in cases involving hate speech.

-        Providing the government time to file FIRs “at an appropriate time” is deeply disturbing. The Court being the guardian of the Constitution and parens patriae of citizens of Delhi was bound to have acted with alacrity.

The context was the Delhi High Court acceding to the Centre’s argument that “the time was not conducive to file FIRs related to the alleged hate speeches as the priority right now is to ensure peace”, and adjourning the hearing to April 13. There was a snide remark about the transfer of judge Muralidhar of the said court too:

Coming on the heels of the questionable transfer of Justice S Muralidhar - his bench had ordered registration of FIRs on hate speeches - within 24 hours, the division bench presided over by Chief Justice Patel ought to have handled the matter more carefully.

The learned advocate seems to have forgotten that long before the Delhi High Court judges did what they did, the apex court had adjourned as many as 60 petitions seeking to declare the Citizenship Amendment Act as illegal for as inordinately a period as the PIL against hate speeches had been adjourned by the Delhi High Court. And worse, the CAA had become law and it was not an event that was happening, it was an event that was over, even granting the CJI his excuse quoted earlier.

The Swarajya Magazine carried a well-reasoned article on February 27, 2020, the subtitle of which said, Delhi Pays For Indulging Shaheen Bagh Recalcitrance; Not Just Police And Netas, Courts Too Responsible.

(https://swarajyamag.com/politics/delhi-pays-for-indulging-shaheen-bagh-recalcitrance-not-just-police-and-netas-courts-too-responsible). The subtitle said it all:

The report said: “The Delhi communal riots, which could have easily been predicted after two-and-a-half months of Muslim-led protests over the Citizenship Amendment Act (CAA) 2019, which included blockage of arterial roads in the national capital and incendiary speeches against the Bharatiya Janata Party (BJP) government that bordered on Hinduphobia, shows how the law and order system has rotted to the core”.

I had commented on this article as follows: “Why Courts Too Responsible? In my view it is ONLY the courts that are responsible for the mayhem in the country today. They have dumped laws duly legislated by the competent body (National Commission for Appointment of Judge Act), they have ordered FIRs against soldiers operating in insurgency-prone areas under the Armed Forces Special Powers Act when civilian deaths occur, forcing 400-odd soldiers, including officers, to petition the court itself to clarify whether they should obey their superiors or flaunt the court orders when confronted with anti-national elements; they order prosecution of police officers involved in maintaining law and order when the law-breakers are lawyers and victims are the police personnel themselves (as happened in Delhi a few months ago and in Chennai High Court premises a few years ago). It is time that judges led actions against criminals from the front along with soldiers in internal security duties and police personnel in routine law and order maintenance”.

To recapitulate, let us understand the basic tenets of jurisprudence. Three that come to mind are:

-          Your liberty ends where my nose begins

-          Justice delayed is justice denied and

-          Justice should not only be done but seen to be done.

That the apex court has been wavering in acknowledging the first tenet can easily be seen in the way it has handled litigation on bandhs/hartals and blocking roads.

More than a decade ago, the apex court upheld a verdict of the Kerala High Court holding bandhs illegal. I recall a media report that the Mumbai High Court had penalized two political parties Rs. 10 lakh each for declaring a bandh in Mumbai after that judgment. But bandhs have continued to disrupt normal life in Kerala even after that verdict. Only they are now called hartals.

Wanting to clear some doubts, I sought the copies of the court order from the Home Minister’s office in Kerala, under the RTI Act. The application was transferred to the Law Department, who transferred it to the High Court itself. And the High Court denied the request claiming that High Court rules forbade providing such information as it was part of judicial proceedings. Much later, the apex court dismissed a petition questioning the declaration of a bandh in Tamil Nadu, claiming that protest was a democratic right and could not be curbed.

Certainly the right to protest must be protected in a democracy. If nothing else, it serves as a safety valve to release pent up emotions against injustice perpetrated by the government. But the important question is: why should someone protest in a manner that impinges on another citizen’s right not to protest on the issue?

Despite failing to prevent the rights of most citizens to lead their lives in a routine manner being violated by some, the Kerala High Court issued another order prohibiting public meetings on roadsides. There being no venues earmarked for staging protests, the Kerala Government did the next best thing. In partial compliance of the court order, they issued an order to regulate such meetings by necessitating police permission for organizing them. But what do the police do? They accept applications, do not give receipts or permission, and allow the event to pass. And if there is trouble at the scene the organizers would have it.

About justice being denied through delay, even the courts dare not deny it. But what we see is that the courts (read judges and advocates) keep touting an irrelevant judge-to-population ratio (instead of a realistic judge-to-docket ratio) to palm off the blame to the Executive. They have done nothing about the tariq pe tariq (adjournments at the drop of a hat) syndrome that has become a joke among the public, or the colonial legacy of vacations that only the judiciary enjoys among public institutions even after 70 years of independence, and the poor docket management. While the first two are self-explanatory, the last one may need some explanation. It is the procedure whereby 100s of cases are listed before every magistrate everyday and almost 90 percent are adjourned after mustering, that is, checking the presence of the parties to the cases.

No wonder Arundhati Roy commented that the process in our courts is part of the punishment. Unfortunately, it is so not only for the accused (who as per law is deemed innocent till convicted) but also for the aggrieved/complainant/petitioner. As H.D. Shourie observed, “Lawyers are accused of employing delaying methods, but no lawyer can succeed if the court refuses an adjournment” (How long before justice comes?, The New Indian Express, December 4, 2004).

Coming to the last issue of Justice being seen to be done, such cases are becoming rarer, if not extinct already. Does anyone remember a judgment that he understood to be fair and just? As an observer of the performance of our judiciary for over two decades, I do not.

Judges always have the investigation officer, prosecution etc. to blame for verdicts going awry. But who is responsible for the failure of the judiciary to deliver justice in the case where a former Chief Justice of India decided that his office was not under the purview of the RTI Act? It had taken almost a decade before the apex court finally disposed of the case holding that the office of the CJI was within the purview of the Act. Who is responsible for the delay and who was punished? We have heard of courts imposing stiff penalties on some litigants for wasting its time on ‘frivolous’ matters and dismissing their petitions, but no penalties in a case that dragged on for almost a decade in the apex court alone.

For the information of the uninitiated, the RTI Act provides for imposing a maximum penalty of Rs 25,000/- on a Public Information Officer who fails to provide the information sought even after 30 days @ Rs 250/day of delay. If the custodian fails to provide the information to the PIO, the Act has declared the custodian as the PIO for imposing penalty.

I had bought a book by the renowned jurist Fali S Nariman, ‘India’s Legal system: Can it be saved?’ Unfortunately, he had no suggestions whatsoever to save our legal system.

I believe that the failure of our judiciary has not only wreaked havoc with the rule of law in India, but has also led to the failure of the other organs in the matter of providing the services due to the public. Judges B.N. Agarwal and G.S Singhvi had said, “for the bureaucracy in the country to work without corruption, these bureaucrats need to be flogged”. Judges S.B. Sinha and Markandeya Katju had opined, “the only way to rid the country of corruption is to hang a few of you on the lamp post. The law does not permit us to do it but otherwise we would prefer to hang people like you at the lamppost … everywhere, we have corruption. Nothing is free from corruption. Everybody wants to loot this country. The only solution for this menace is to hang some people in the public so that it acts as a deterrent on others”.

As an activist using the RTI Act extensively to realize the import of the law to contain corruption and hold Governments and their instrumentalities accountable to the governed, I can say that if I could have approached the courts to prosecute the information commissioners under Sec 219 of the Indian Penal Code, most information commissioners would be behind bars for the rest of their lives. But I dare not. Why?

This is what the National Commission to review the working of the Constitution reported:

“Judicial system has not been able to meet even the modest expectations of the society. Its delays and costs are frustrating, its processes slow and uncertain. People are pushed to seek recourse to extra-legal methods for relief. Trial system both on the civil and criminal side has utterly broken down”. Further, “Thus we have arrived at a situation in the judicial administration where courts are deemed to exist for judges and lawyers and not for the public seeking justice”.

The widening schism between the public and public servants does not bode well for the future of the country.