This article was first published by Scroll.in on August 21, 2021 and republished with the kind permission of Scroll.in and Mr Murali Neelakantan
A book by a retired judge is not one that is keenly anticipated or read. At best, there will be a book release function with other judges and everyone will say something nice about the judge and the book, even if they haven’t read the book. This one though is different for many reasons – the author is well known in the legal fraternity as a scholar and deep thinker of law and justice but always tempering that academic though with pragmatism. This book should therefore be no surprise to the cognoscenti who will be familiar with his lectures and essays.
The book is a collection of essays – some published earlier and others adapted from lectures delivered by the author. Thanks to the editing team which has blended the different formats to a uniform style, it would not be easy for anyone to tell the difference. A frequent criticism of books and essays by retired bureaucrats and judges is that they tend to be “preachy” –being nostalgic about the past and how terrible everything has become now. The author confesses that it is something that he was conscious of and tried to avoid. It may seem that he has, perhaps unconsciously, fallen into that trap in a few places – the state of the legal profession and his advice to judges but one should really see this as practical tips from an expert.
The first half of the book is titled “General” and contains 5 essays dealing with anomalies in the law andobsolete provisions in the lawwhich everyone just refuses to acknowledge. The first chapter highlights the ridiculously low level of fines for offenceswhich puts judges in a difficult situation – if they find the accused guilty, they tend to impose imprisonment because the fine is just not proportionate to the crime or they impose a fine which becomes a small cost for the criminal to continue to ignore the law. Addressing this requires a new approach – of regularly updating these amounts by a fixed percentage (say CPI+ 20%), perhaps by one statutory instrument every few years so that the fine is a real penalty, not just a fee to conduct criminal activity. Similarly, compensation to victims under various laws hasn’t been updated in years and it would be useful to have a law that allows these amounts to be increased by notification every few years.
No book on law and justice in India is complete without a substantial portion devoted to the judiciary. The author describes many of the problems that the justice system faces but in summary it seems to be – justice is not the objective of all the stakeholders. This doesn’t come as a surprise to anyone but he provides some pragmatic solutions although it is fair to say that none of them is novel. That however, is a telling indictment of the “system” – we know the problems and the solutions and yet we haven’t done much to solve those problems, which seem to be growing by the day.Surprisingly, no mention is made of live streaming of court proceedings and how that is likely to affect justice delivery especially since there are a few paragraphs on media trials. Having authored the landmark judgment of the constitution bench in the Madras Bar Association (2010) case about constitutionality of tribunals, one was expecting an essay on this topic which, in recent years, has become an eyesore, neither fish nor fowl.
The last two chapters in the first part of the book are about corruption and parliamentary democracy. Readers will find his classification of corruption, bribe givers and public servants interesting. Corruption is classified as Preparatory Level, Initial Level, Standard Level, Serious Level and Catastrophic Level based on the circumstances of the citizen bribe givers. Public servants are classified into the Incorruptible, Basically Honest, Fence Sitters and Incorrigibly Corrupt and the author believes that they neatly fit the Gaussian distribution of 5:50:40:5. The essay about parliamentary democracy addresses many of the issues that have remained unresolved for many years now – the election process, voting, criminals in politics and impact of money on election results. It was a surprise that there was nothing said about “horse-trading” – that seasonal activity that Indian political parties undertake and is now widely acclaimed as an essential political skill.
The second part of the book is a collection of essays based on speeches delivered at the National and State Judicial Academies and provides a wonderful insight into the workings of the judiciary. While it highlights the tasks and challenges that the judiciary faces and provides some very pragmatic and practical advice, for those outside the judicial system, it explains how judges work, especially the “tricks” used to game the system. Lawyers have known how this is done – remand the case to the lower court rather than decide the dispute, issue notice and leave the case for someone else to decide, issue orders that can never be executed, etc.
The one issue in this part of the book that affect everyone is the uncertainty in the law that is caused by the judiciary. In the first part of the book, poor legislation and executive orders were criticized, and to be fair, this part doesn’t spare the judiciary. The tone is “mea culpa” rather than pontification and that should make the suggestions for reform more palatable. His advice to judges about the key qualities that they need to exhibit may seem obvious but during an informal chat with the author, he mentioned that this was the only way to earn the trust of the people who seem to have become cynical about the judicial system. There is an acknowledgement, in the same way as Daniel Kahneman describes in his latest book, Noise, that inconsistency, prejudice and bias can’t be eliminated but being cognizant of them means that judges can actively identify and address them.
The last two essays in the second part are about alternate dispute resolution – mediation, conciliation and arbitration. India has a long way to go before these forms of dispute resolution become mainstream and until they do, courts will find it impossible to deliver justice. His extensive experience as an arbitrator, since retiring from the Supreme Court, shows in the last essay – on arbitration where he highlights the reasons why Indian arbitration has been infected with the same virus as the Indian judiciary. One shouldn’t expect a different outcome if the players (lawyers and retired judges) are the same but it is striking how these very same people behave so differently when they participate in international arbitrations. Perhaps he will read the essays in The Idea of a Law School, Ideas from the Law school and discuss why it is that developed countries have managed better outcomes than India, despite having similar rules.
As with any book, it will not be able to cover everything aspect of the topic and it is impossible with law and justice. I hope that he will write about why the judiciary seems to have to function at half its sanctioned strength and no Chief Justice is able to do anything about it. Another subject that hasn’t been explored is the propensity of the Supreme Court to hear cases without following the rigour of the procedure established in Articles 132 to 136 of the Constitution. It seems like the enthusiasm of the Supreme since the 1990s to exercise the power to do complete justice conferred by Article 142 has elevated article 136 and rendered Articles 132-135 impotent. These and article 136, if restored to their proper place, would address two major issues –courts focusing on what needs to be decided and not be distracted in their judgments, which the author identifies as a major cause for uncertainty in the law, and will filter out cases that don’t raise substantial issues of law and shouldn’t therefore be heard by the Supreme Court. As a result, there will be fewer cases in the Supreme Court and clearer declarations of law under Article 141 of the constitution. This is the experience of the UK and there is no good reason that India cannot have it too.
There are other subjects that one hopes he will address when he delivers lectures or writes and everyone will benefit from his experience and insights. This book is not just for lawyer and judges, it is also for legislators and administrators and vigilant citizens. One hopes that the book will be essential reading at the Lal Bahadur Shastri Academy of Public Administration and the author will be invited to discuss it with future administrators, judges and parliamentarians. Justice Raveendran clearly articulates his diagnosis and then goes on to offer suggestions for both reforms and also incremental changes that can be easily executed. Will those who care about justice in India pay heed?