In his recent lecture in New Delhi, the economist and moral philosopher Amartya Sen raised an important issue concerning the distinction between the ancient concepts of niti and nyaya. Niti would correspond to having a system such as democracy, which exists at the surface as it does in India. But where outcomes—minimal protection from crime, persistent malnutrition, poor health care for large sections of the population, poor to non-existent educational opportunities for underprivileged children—are anything but democratic and make a mockery of the law by denying justice to citizens.
The best example of the denial of nyaya is our current judicial system, where understaffed police, too few judges, cumbersome processes, endless delays and costly litigation ensure that ordinary persons as distinct from the rich are unable to get elementary justice. Prof. Sen acknowledges that expecting a quick change from the Indian state is problematic. Where he misses the boat is when he advocates that we should simply try harder collectively. Trying harder is not going to help. We need to revisit the root causes of the malaise and regain the vision of liberty and justice that our Constitution promised, which engaged the attention of our founding fathers. The Indian state is failing because it has chosen to lose the primary focus of any government, which is to ensure that a fair niti prevails and a high probability of nyaya emerges.
We have far fewer policemen and policewomen than we need and far fewer on a per capita basis than any country that claims to pursue niti or nyaya. Our police force operates with a grim, obsolete, infrastructure. Just visit any police station and you will discover for yourself the horrors of 19th century infrastructure. Contrast this with the 21st century ambience of shopping malls operated by our private sector and the argument becomes palpable. The theme of widespread state sector failure accompanied by islands of private sector success continues to haunt us. Our judges are overworked and have no assistance from computerized systems, which are today taken for granted even in small retail outlets. The one exception has been our Supreme Court, where a relatively simple computer system installed at a very low cost has resulted in a steep decline in litigation delays. Our district and state high courts are yet to benefit from this.
Our government is willing to spend billions recapitalizing banks and airlines (which can easily access private capital markets), while refusing to provide much-needed budgetary allocations for the police, the judiciary and as has become relevant recently for anti-terror agencies. The state needs to recede from some areas and simultaneously re-energize itself in areas where its role is central. A state that forgets its primary role in the pursuit of chimeras that it can, and should never, deliver, runs the risk of losing legitimacy in the eyes of citizens. When this happens, we run the danger of matsya nyaya becoming prevalent where “the big fish eat the little fish”.
A concerted effort to improve our police and judicial systems is overdue. We can have airy, clean, air-conditioned police stations and courts equipped with modern workflow systems rather than obsolete paper-based files; these changes will enormously improve the productivity of a workforce who currently receive no positive motivation, only brickbats. We can have sufficient personnel (hopefully not endlessly deployed for the personal security of privileged politicians); we can ensure quick depositions from complainants and witnesses in front of the judiciary (preferably using video technology, which is available quite inexpensively); we can make an attempt to ensure that our citizens begin to see the state as a fount of law and justice, not as a purveyor of indifferent tyranny and justice not dispensed.
It is estimated that 50% of the litigation in India is between different government entities (state and Central). Why can we not, by administrative fiat, rule that these entities will not appeal any judicial decision in a higher tribunal? The powerful lobby of lawyers will get upset and may need to be mollified by higher fees. But upsetting a small lobby in order to clear the gridlock in the courts would be eminently worth doing.
By focusing on the failure of the Republic of India to live up to ancient tenets of “Raja Dharma”, Prof. Sen has done us a service. If we do not fix our fast disintegrating police and judicial systems, we run the risk of the end of the first Republic of India. When the mandate from heaven (which is really the mandate from citizens) is withdrawn from our government, what horrors may follow from the likely anarchy can be predicted by looking at the fragments of the erstwhile Soviet Union and the former Yugoslavia. One must pray to the gods of our land that we are spared this terrible dispensation.
Jaithirth Rao, a former banker and technology entrepreneur, divides his time between Mumbai, Lonavla and Bangalore. Send your views on this column at firstname.lastname@example.org