Uphold ‘niti’ as well as ‘nyay’ for the cause of justice to be served
An analysis of procedural justice as distinct from its substantive form over the past two decades can help improve its delivery.
Amartya Sen, the eminent philosopher-economist, invokes an old distinction between ‘niti’ and ‘nyay’ in his 2009 classic, The Idea of Justice (Allen Lane). Both relate to justice. Among several uses of the term ‘niti’, important ones include organizational propriety and behavioural correctness. In contrast, the second term, ‘nyay’, encompasses a comprehensive concept of realized justice. Thus, the roles of institutions, organizations, laws and rules have to be assessed from this broad, inclusive perspective of nyay. Indeed, as Sen emphasizes, the aim of justice is not just achieving some perfectly just society (such as one without inequality), but preventing severe injustice. While this is an ambitious agenda for empirical research, our present analysis has a modest objective.
We rely on a distinction between procedural and substantive justice. While procedural justice is associated with fair and impartial decision procedures, substantive justice is associated with whether the statutes, case law and unwritten legal principles are morally justified (the freedom to pursue any religion, for example). However, there have been blatant violations of constitutional provisions under both the United Progressive Alliance and Bharatiya Janata Party-led National Democratic Alliance, resulting in denial of justice to millions of people. Our objective here is to conduct a comparative analysis of denial of procedural and substantive justice under these two regimes, and to highlight an exacerbation of social tensions and conflicts that may imperil social stability.
The Constitution of India provides for a single integrated judicial system with the Supreme Court at the apex, high courts at the middle (state) level and district courts at the lower level. The Chief
Justice and judges of the top and high courts are appointed by the President under clause (1) of Article 217, while district judges are appointed by the state governor in consultation with high courts. We, however, lump high court and district court judges under the ‘lower judiciary’ as they appear vulnerable to state government interference, as observed in trends suggestive of a state-government-judiciary-police nexus.
Denial of procedural justice is reflected in India’s huge share of under-trial prisoners. This has been a long-standing problem. According to a 21 January 2013 report of the Asian Human Rights Committee, there was a backlog of about 20 million cases in trial courts, 4.1 million cases in high courts and 49,000 cases in the Supreme Court. In 2013, a year before the UPA completed a decade in power, the AHRC estimated that cases took 10-15 years to go through the court system. Further, according to Transparency International (2011), 45% of people who had come in contact with the Indian judiciary between July 2009 and July 2010 had paid a bribe to someone in the system. The most common reason was to “speed things up". ‘Fixed rates’ were reported for a quick divorce, bail and other procedures. The AHRC report of April 2013 said that for every ₹2 in official court fees, at least ₹1,000 is spent in bribes to bring a petition to court.
Under the NDA regime, denials of justice require a broader lens of scrutiny. Two striking features of the BJP-led NDA regime are centralization and the pursuit of Hindutva ideology. The Central government relies heavily on constitutional authorities such as governors to impose New Delhi’s diktats on states, reducing their autonomy, even if welcomed by BJP-run states. As for ideology, what requires examination are consequences of bias-fanning by various agents for the rights of minorities, especially Muslims and lower-caste Hindus.
According to statistics provided by the National Judicial Data Grid, as of 12 April 2017, there were 24,186,566 pending cases in India’s district courts, of which 2,317,448 (9.58 %) had been pending for over ten years, and 3,975,717 (16.44 %) had been pending for 5-10 years.
In 2016, Freedom House’s report for India stated that “the lower levels of the judiciary in particular have been rife with corruption". Meanwhile, the GAN Business Anti-Corruption Portal reports that in India, “[t]here is a high risk of corruption when dealing with India’s judiciary, especially at the lower court levels. Bribes and irregular payments are often exchanged in return for favourable court decisions" (GAN Integrity 2017).
Secularism was dealt a blow by the Citizenship Amendment Act (CAA), 2019, which, together with a proposed nationwide National Register of Citizens (NRC), would put many Muslims across the country at risk of disenfranchisement. It provides a pathway to citizenship for non-Muslims from neighbouring countries, but has no remedy for Muslims caught paperless in NRC processes of identifying Indian citizens. This gap led to violent clashes between anti-CAA/NRC protestors and the police. Despite constitutional guarantees, several BJP-ruled states have passed anti-conversion laws over the years, which make it harder for a person to change one’s religion. A case in point is the Uttar Pradesh Prohibition of Unlawful Religious Conversion Ordinance, 2020. Popularly known as the ‘love jihad law’, it was approved by the state cabinet and received the state governor’s assent on 28 November 2020, making it enforceable. The law makes religious conversion a cognizable and non-bailable offence in UP, with its weight falling mostly on Muslims.
The case of justice and its potential denial that is currently in the country’s focus involves famed Indian wrestlers and allegations of sexual violations against a member of the ruling party. This is in the news, as it should be, but there are countless other cases that also need attention.
Both niti and nyay need to be met fully, and it is clear that along with old challenges of judicial capacity, we have new ones as well. It is important that denial of justice does not worsen, get more painful or sharpen social fissures. It is well understood that a society’s stability depends crucially on how well the judiciary works and justice is served.
Vani S. Kulkarni, Veena S. Kulkarni & Raghav Gaiha are, respectively, research affiliate at the department of sociology, University Of Pennsylvania; associate professor, department of sociology, criminology and geography, Arkansas State University; and research affiliate, Population Aging Research Centre, University of Pennsylvania.
