Despite differences in perception, constitutional experts agree that rule of law is the cornerstone of the legal system of all democratic countries. Rule of law means that every person is subject to the law, and that the law is the same for everyone. The real meaning of rule of law is summed up in Lord Denning’s famous observation: “Be you ever so high, the law is above you.”

Rule of law is the subject of myriad scholarly treatises, but for the common man, rule of law only means that the judiciary provides him adequate protection from arbitrary actions of the Government and he faces no difficulty in exercising his legal rights. The common man also hopes that the high and mighty receive their comeuppance for their many scams and scandals.

Sadly, rule law of has proved to be a mirage, especially for the common man. Recently, the Law Minister informed the Lok Sabha that almost 4 crore cases were pending in various courts. Out of these, 3.45 crore were pending in subordinate courts and 51.53 lakh cases were pending in various High Courts. Many of these cases had been pending for donkey’s years. “Justice delayed is justice denied” is an age old proverb; the huge backlog of cases in courts ensures that few, if any, get justice. Sample the following news items in last week’s papers: “The court of Chief Judicial Magistrate, Surat acquitted 122 persons arrested in December 2001, for being members of the banned outfit SIMI for lack of “cogent, reliable and satisfactory” evidence. One can well imagine the agony of innocent people facing trial for nineteen years, the fees paid to lawyers over the years, or the valuable time of the court wasted on the trial.

In another shocking instance, a man was acquitted of false rape charges by the Allahabad High Court after spending 20 years in jail. At the time of release, this unfortunate man was aged 43 years; because of judicial delays his entire youth had been wasted in jail. Justice Ranjan Gogoi, a former Chief Justice of India, called the Indian judiciary “ramshackle” and stated in an interview: “If you have to go to court, you will only be washing dirty linen in court and you will not get a verdict. I have no hesitation to say so. You regret it if you go to court.”

The most important duty of the judiciary is to ensure that the Government respects the freedom of the individual. The Supreme Court has often said that the role of the Court is that of a sentinel perpetually on the que vive (alert). As far back as 1977 the Supreme Court had laid down the maxim: “Bail is the rule, jail is an exception.” Recently, looking to the increasing incidence of cases where at the instance of the executive the lower courts had denied bail to individuals, the Supreme Court sternly observed that the High Courts and District Courts had all but forgotten this dictum and all Courts “must enforce this principle in practice, and not forego that duty, leaving this court to intervene at all times.”

Statistics paint a depressing story of the criminal justice system. A PRS Research Paper reveals that of the 4 lakh persons lodged in jail, two-thirds were undertrials. The Paper also found that 3,599 undertrials had been detained in jail for more than five years. On the other hand, the rich and famous operate in a totally different dimension. Tracing the progress of various scams through the years, we find that none of the perpetrators had been punished and not a red penny of the scammed amounts had been recovered.

The Delhi High Court quashed all charges against the accused in the Bofors Scandal, in which kickbacks of Rs.64 crore were alleged, observing that fruitless investigations had already cost the exchequer Rs 250 crore. The Commonwealth Games Scam, 2G Scam and the Coal Scam had the same denouement. The lakhs of crores of rupees involved in these scams have vanished in thin air. It is impossible to pin the blame on any particular individual(s) or institution for this sad state of affairs, but the law apparently makes a distinction for the well connected.

Shocked by the presence of a large number of persons with criminal antecedents in legislatures, the Supreme Court, had mandated in January 2018, that Special Courts be constituted to fast-track the long-pending trials of lawmakers. In September 2020, the amicus curiae assisting the Supreme Court reported that a total of 4,442 cases were still pending against MPs/MLAs in different courts, including Special Courts. The amicus curiae further reported that the number of legislators involved was more than the total number of cases, since there were more than one accused in some cases. The progress in most cases was minimal, the oldest case in the Special Courts dated back to 1983, and three cases registered in 1991, 1993 and 1994 had not even reached the trial stage.

Almost no one had been convicted by the Special Courts and most cases were still pending; for example, of the 245 cases in Telangana, 73 had been disposed off with no conviction and the rest were still pending. The UP Government did even better, by withdrawing serious cases against political personalities. The Model Code of Conduct is honoured more in breach than in observance because most election related FIRs are withdrawn the day the elections conclude.

There are many reasons for the unsatisfactory functioning of the judiciary. Despite an oft repeated commitment to improve judicial functioning by the Government, the First National Judicial Pay Commission found that the expenditure on judiciary in India was hardly 0.2 per cent of the GDP, as against 1.2 per cent in Singapore, 1.4 per cent in USA and 4.3 per cent in UK. All States except Delhi provided less than 1 per cent of their Budget for subordinate judiciary. Lack of staff and deficient physical infrastructure is a direct result of such miserliness.

Another reason for the huge pendency of cases is the shortage of judges; the Supreme Court had 23 per cent vacancies, High Courts had 38 per cent vacancies while the subordinate courts had 26 per cent vacancies. In numerical terms, High Courts had a shortage of 406 judges and subordinate courts had a shortage of 5,746 judges. Fully 48 per cent of subordinate judges’ posts were vacant in Bihar, followed closely by UP with 46 per cent vacancies. Alarmingly, judicial vacancies have increased over the years. No wonder, most cases crawl through the courts.

However, statistics do not tell the whole story of judicial decline which is the result of a perceptible decline in the confidence, character and capabilities of judges of lower courts. In the not too distant past, despite pitiful emoluments, most judges were guided by their conscience and not by convenience or peripheral considerations. This strength of character has almost vanished; most judges would rather not decide contentious cases and willingly bend when pressure is exerted on them. The superior courts owe a duty to restore the pride and confidence of judges of subordinate courts.

Many a times, superior courts deal with the issues before them tangentially, reducing public confidence in the judiciary. For example, Madras High Court, while deciding an issue about marks awarded in the Teacher Eligibility Test laid down that Vande Mataram be sung in all schools. Also, the new-found tendency of Courts to curb criticism by taking recourse to contempt powers, at the slightest pretext, has dented their credibility even further. Some recent amendments have introduced provisions for plea bargaining, compromise and summary procedures for trials, so that disputes could be resolved quickly to the satisfaction of both parties. Yet, many judges revel in continuing with legalese and archaic procedures that make lawyers indispensable even for petty cases and result in disputes dragging on for years. Taking this trend further, specialist tribunals often clothe themselves with the procedures and trappings of courts, defeating the very purpose for their creation. A conscious decision of the Government and superior courts to make laws easily comprehensible to the public and encouraging public participation in judicial processes would go a long way in reducing pendency of cases and delivering substantive justice. To conclude, Jonathan Swift’s words, written more than four centuries ago, still ring true: “Laws are like cobwebs, which may catch small flies, but let wasps and hornets break through.” (A Critical Essay Upon the Faculties of the Mind, 1707).