We are witnessing India in an extraordinary situation today. The entire country has been practising lockdown. The sole purpose is to contain the coronavirus and save the country from going into recession. But amidst all this, we are witnessing lakhs of people gathering at the inter-state bus terminal in the capital. They want to reach their home as soon as possible by hook or crook. And this incident brings the whole government at its knee. No matter who is responsible, no matter what the situation was, no matter it was anticipated or not, the government is exclusively accountable, and if it remains inactive to ensure the safety and security of these people, it’s a blot on the governance system.
In recent days we also witnessed an unimaginable Tom and Jerry game between the defending councillor and the courts, including the SC in the Nirbhaya Rape case judgment. It took the system seven years to execute the culprits with capital punishment even when the all accused accepted their crime in the very beginning. Most of us wonder what the reason is! It is witnessed that some people hate that defending advocate for what he was doing as required by his profession. We cannot miss the fact that the same happened in the deadly criminal Kasab’s case. He was also provided councillor on the sponsorship of the government of India, and to execute him; the government took years.
One the other hand, recently, when a lady doctor was brutally raped in Hyderabad, and the Telangana Police immediately shot the accused after they accepted their crime with all shreds of evidence. The public lauded it in general, excluding some handful of people who care about the convention of fixing punishment through established law.
There are multiple examples when it is evident that the system has taken an abnormally long time to shut an open and shut case. There is a history to it.
In 1977, Smt. Maneka Gandhi’s passport was seized by the airport security for a reason which was never expressed. She claimed that there was unreasonable behaviour from the organ of the government. Consequently, she moved the Supreme Court recognizing it a violation of her Fundamental Right of visiting abroad under Article 21 of the constitution of India. And the Hon’ble Supreme Court made a milestone judgment in the case which is named as Maneka Gandhi Vs. Union of India. The security authority followed the “procedure established by the law.”
It means that if a process is done by the government agency with the established procedure of law, even if it is not reasonably required, the court will uphold it. And that interpretation gave the law enforcement organs of the government to go unchecked multiple times in terms of violating the boundary of human dignity.
But, in the Maneka Gandhi case, the Hon’ble Supreme Court gave a judgment stating that the Supreme Court will not remain satisfied only by the adherence of individuals or agencies to the “established procedures as per law,” but it will also refer to the “due process of law.” That means now the Supreme Court was making legal review possible for the need and necessity of the activities performed by the organs of the government following the “procedure established by the law.”
Unfortunately, the Indian judiciary, despite identifying the need to make the ‘due process of law’ as the guiding principle for the administration of justice, it is helplessly still following only the ‘procedure established by the law.’ The reason behind it is that the judiciary is too late to solve the cases. The Indian court is surprisingly perching on 45 million cases. So by the time a case gets on the verge of judgment, the whole set of situations around the dispute appear to be changed. And hence, the judging authorities have to rely on the need for written records, and there is a review of only the ‘established procedures as per law.’ It was classically manifested when multiple dates of hanging the culprits of Nirbhaya’s rape and murder were postponed when many loopholes were capitalized to push back the judgment of executing the culprits. It is anybody’s guess that the culprits were not going to be spared.
This is a challenge that the judiciary, executive, and all enforcement agencies are facing. To provide citizen-centric governance, judges should not rule the country or be the de-facto governor because they are accountable to none. The moment, the rule book exclusively starts governing systems, and human cognizance stands at bay, and that decreases the confidence of people in the judicial institutions.
If we watch the contemporary situation of the exodus of the migrant labourers on foot for hundreds of kilometres, doesn’t it sound strange and dangerous for the Indian judiciary? Do we intend to be a developed nation without citizens’ indomitable belief in the country’s judicial, political, and societal establishment? This is practically and fundamentally neither possible nor should be tried.
The judiciary has to lay down paths for the curation of relevant laws for the advancement of the country. And it also has to maintain the principle that the law-making institutions are the only competent authority for governance. The approach of checks and balances requires the judiciary to be active and self-regulatory, but the best way it is possible is through the increased competency of the judiciary. It must focus immediately on the administration of judicial institutions so that it may perform as per the requirement. The decision of retired CJI Mr Gogoi, to get into the law-making body can be an instrumental move to get the needed reforms done with a decisive and stable government like the current one. With the mantra of ‘Minimum Government and Maximum Governance’ India must also endeavour to strike down the situation of ‘Much Laws and Little Justice.’