Were the Indian courts always this bad?

Recent cases stopping action against encroachments, releasing rape convict, etc. show judiciary in poor light. But things were not this bad always.

Indian judiciary has a history dating back to pre-independence times. Many Indian freedom fighters were trained as lawyers. Indian judiciary was as good as any common law judicial system.

Before independence, Indian judges (and British judges) were applying colonial law to Indian cases. These laws were, by design, predisposed to protect British interests i.e. the government’s interest. We must remember the rule of law was important not because people needed the law. Rather, rule of law was important to circumscribe the powers of the ruler, i.e. the King or the government in the modern-day.

In 1950 Indian constitution came into force. But most of the laws remained the same. The pro-government slant of the law remained. Indian judges, initially as a matter of habit, started applying the same principles they used earlier. However, diverse judicial appointments allowed some new perspectives to be brought into legal view. Some judges considered how the principles of dharmashastra could be applied to modern law. Their strict pro-government attitude mellowed a bit and their focus was on justice.

The subversion of the judiciary started with Indira Gandhi. The capitulation of the Supreme Court in upholding the Emergency of 1975 remains a blot on the highest court of the land. You can never compromise with the devil just once. Thereafter political interference, particularly interference by Indira Congress, increased. Judges remained stuck to the letter of the law, spirit be damned. Some judges did rise against this spineless subversion.

Many people think, if subversion is indeed true, judges should have sided with the government in every single matter. That is not really necessary. So long as the judicial review did not disturb the critical elements the system was fine. The courts did a give and take - give people meaningless victories and take away important freedoms.

The Supreme Court and the judicial system itself needed to protect itself from undue political interference. In a series of judgements, the Supreme Court formalised the system of judicial appointments. This is popularly referred to as the Collegium method.

However, the Collegium system based appointments turned the judiciary into an inbred group, disconnected from the citizenry. The children of judges in the High Court or Supreme Court, senior advocates became judges in increasing percentages. Most outsiders also have to adopt the value systems and habits of the dominant group. This is being noticed now. (Indian Express 2017 Article and Freepress 2019 article)

The Government, cognizant of the challenges, proposed a law National Judicial Appointments Commission to open this coterie to more diverse thought. The Parliament approved this bill, both houses passed it in 2014. However, in a remarkable usurpation of power unto itself, Supreme Court declared itself to be beyond the control and oversight of the Parliament. It declared that the Collegium system which was evolved by the Courts themselves forms the “basic structure of the constitution” and hence declared this law unconstitutional.

Thus we have a system where the judges are mostly mollycoddled children born into elite families of judges and senior lawyers. Many have no experience with the life and experiences of common folk except, what they come across in their legal practice. These kids, educated in elite institutions, were programmed with left-liberal ideology taken in by the lure of enormous power dressed in a simple grab.

Their disconnect is so stark that when a Ajeet Bharti chastens them in a hard colloquial Hindi, they feel offended and issue contempt notice to him (twice) promptly. As Ajeet likes to point out, the Supreme Court does not have a problem with the facts that he has stated, just his language. So much for freedom of speech!

This situation can change. There are two sources of dissonance with the judiciary. First, colonial-era laws and powers available to the judges that slant in favour of the government have to be changed. Secondly, we need to broaden the appointments and enforce the accountability of the judges. Till then, we can pray.