We need judicial institution which guarantees costless justice to citizens in time bound manner

Courtesy: scroll.in

By Santosh Gedam*

The constitution can be summarised as a supreme public policy document adopted by the founding fathers of our country in the historic constituent assembly (CA). The task of the CA was limited to crafting the constitution as envisioned by them for the newly created nation. The constitution is hailed as one of the longest constitutions in the world. The flow and vision of the preamble can be summarised in a single word as “majestic.” I commit full allegiance to its core, which is often describe as values, ideal, soul, goals, etc.

For simplicity, I will refer to the intended intentional core of the constitution as values literally. Constitutional values mean what values the constitution intends to achieve and promote in the life of the nation after having guaranteed—justice, equality, liberty, and fraternity. This article is a critical piece reviewing experiences to reflect on the conduct of organs created by the constitution in achieving the constitutional values. To support my claim that the constitution remains exogenous to the governance experience of the citizen, I will cite two significant areas of public areas—economic growth and judicial functioning.

We do not have a counterfactual to the existence of the constitution. Hence, we cannot attribute what we are to the existence of the constitution alone. However, the existence of public institutions that drive its authority directly from the constitution can be attributed to the constitution alone. But we don’t know in the absence of these institutions how could we have evolved. Public institutions have created a large bureaucracy that is funded by public money. Taxation on the labor of the citizens is in exchange for the achievement of something.

What is that something? We have to realize something. I argue that that something is the constitutional values, and every other thing is an instrument towards those values. Primarily, the bureaucracy is expected to facilitate achieving constitutional values by choosing the most suitable instrumental target. It appears that we have drifted from achieving constitutional values and are obsessed with instrumental targets. This makes it appear that the constitution has become exogenous to the governance experience of the citizen.

One of the topmost policy priorities of the government is economic growth. The government measures the health of the economy regularly and undertake instrumental targets. These instrumental targets intend to achieve increased credit flow, industrial output, formal employment, among other things. The report card of the government performance in the domain of economic performance is measured as the gross domestic product (GDP).

GDP is seen as the cardinal performance indicator of the government. In the initial 50 years of independence, around 50 million people are displaced due to development project alone as per the government. One cliché mentions how a cyclist is bad for the economy, even though it promotes a healthy lifestyle. Focusing on the core argument of the article, I searched for the ‘economic’ word in the constitution, which returned 23 results. Not even once, there is a mention of GDP in our constitution.

We have mention of justice—social, economic, and political. So, the closest we can link guaranteed constitutional value of economic justice to its citizens. This misplaced instrumental target raises many questions. How does focusing only on GDP is aligned with the constitutional value of economic justice? Is the chief economic adviser (CEA) aware of the core constitutional value of economic justice that must be the focus of the economic policies and not the GDP alone? Is the CEA doing inter-disciplinary work (law & economics) expected to receive some training of the supreme public policy document—the constitution?

We have to think about this disjoint else pursuing only the GDP would make lived experiences of governance for citizens bereft of the constitutionally guaranteed value of economic justice. Post economic reforms in 1991, we have achieved, on average, 6.28% GDP growth as per the World Bank. Widely discussed, increasing economic inequality is the starkest indicator that the constitutionally guaranteed value of economic justice is not the lived experience for millions, if not billions. We have to alien our instrumental targets to achieve economic justice for every citizen.

The second area of public policy, which makes the lived-governance experience of citizens exogenous to the constitution, pertains to the judiciary. The collective action theory argues that centralized planning is bound to produce sub-optimal outcomes for the collectives. Hence, the role of an independent judiciary is critical to review those decisions. Indian judiciary enjoys absolute independence from all quarters except for the near-impossible impeachment procedure under the constitution.

The way this institution has evolved makes it almost autonomous. It can work fearlessly to protect and promote constitutional values. It is an unexplored area to know how the collective action theory would work in the case of this institution. Coming back to the lived experiences of citizens while seeking justice, the idea of justice is the core value of the constitution. Replying in the CA on 9th December 1948, Dr Ambedkar described Article 32 as the very soul of the constitution and the very heart of it. This view of Dr Ambedkar puts an enormous duty on the higher judiciary in guaranteeing constitutional values and fundamental rights.

Yet against this benchmark, of the few performance indicators present worrying picture. The case disposal takes years in a tedious and costly process. The design of the justice delivery system puts an enormous cost on the genuinely grieving person who might have already suffered costs due to grievance. This scenario is particularly real in the case of civil matters.

As per an analysis by PRS India in 2016, in the High Courts, 23% of cases have been pending for over ten years. Further, over 29% of all cases have been pending between two and five years. The possibility of appeals in the Supreme Court is bound to increase the time for getting the ultimate verdict. The constitution mentions nothing about the rate of deciding the court matters; neither it mentions delays in the process.

This gap opens for the organic target for functioning of the judicial institutions. Hence, there is a high possibility that the lived experience of common persons seeking justice as guaranteed by the constitution meets with the high cost and enormous delays. We need a judicial institution which guarantees costless justice to the citizens in a time bound manner. We need to think about removing costs from raising a complaint to getting justice for a grieving citizen.

However, based on the analysis of the present reality, I leave judging this experience seeking justice for a common person to the judgment of the reader. Analysis of the two areas of governance highlights the disjoint between instrumental targets and constitutional values. I conclude this article highlighting that we need multi-disciplinary approach for economic planning. I expect further discourse on making governance experience of citizens as per constitutional values.

*Ex-PMRD Fellow, Ph.D. student, IIM Ahmedabad

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