Social Policy Advocacy and the Role of the Courts in India
Jayanth K. Krishnan
Indiana University Maurer School of Law
American Asian Review, Vol. 21, No. 91, 2003
The "success" of India's democracy is a feat that must not be underemphasized; this article by no means will attempt to say otherwise. However, even within the most thriving of democratic societies problems exist. In addition to the challenges mentioned above, India confronts other issues. Corruption and bribery of politicians, police abuse, non-performance by and incompetence among bureaucrats, and an inadequate infrastructure are just a smattering of troubles that burden the Indian state. As serious, if not more so of a problem, but one that has received passing attention by most scholars, is the inefficiency of the country's judicial system. The courts in India are thought to be the most crowded of any in the world. A recent report states there are "23 million pending court cases-20,000 in the Supreme Court, 3.2 million in the High Courts and 20 million in lower or subordinate courts." Cases take decades, and sometimes generations, to resolve. A New York Times story from a few years ago tracked one property law case that remained open for forty years - long after both original litigants were dead.
These mind-boggling backlogs and delays in the legal process have far reaching implications for those interested in making social policy changes. As I shall suggest in this article, in spite of all its successes, Indias democracy is at risk of becoming de-legitimized because of the increasing lack of faith many Indians have in the judicial process. Social policy advocates, in particular, who work on behalf of such groups as the poor, lower castes, women, the ill, and/or religious minorities, often have not found the legislature to be responsive to their needs. But lately, they neither have found it worthwhile to redress their grievances in what has become a time-engulfing legal process. Instead, these activists have opted for other means to advocate their causes that focus on more grassroots tactics. Yet, the problem is that in a democracy, the judiciary is constituted to serve as the counter-majoritarian protector of minority interests. It is thus disturbing that so many Indians in need, who believe the legislative process cannot help them, are as quick to dismiss the courts as a forum where their social policy concerns can be met.
This article then will argue that India's democracy, which in the West is lauded as a beacon for other developing nation-states, is at its most crucial juncture. Large numbers of citizens for a long while have been disillusioned with the legislative process. Now that the courts are also seen by many as a futile forum in which to bring about social change, it is little wonder why those who are aware of the turmoil within the Indian legal system fear that this great democratic experiment is encountering one of its biggest crises to date. In this article I shall concentrate on the challenges facing the courts and the implications of this on social policy advocacy. It is important to note that the substantive decisions emerging from the courts - particularly from the Supreme Court - can and often have been to the benefit of social policy activists. The issue here, however, is the length of time it takes to receive one of these beneficial judgments. That such massive delay inheres within the legal process is what deters many from pursuing this route. But before proceeding to a full discussion of this point, it is necessary to provide a brief overview of the literature that has recognized what India's democracy has accomplished - by way of both political and social policy advances. Section two, therefore, will summarize a selected sample of readings that address this topic.
In sections three and four, I return to my main thesis by suggesting that much of the standard literature has failed to offer a critical analysis of one of India's most important institutions: the courts. In providing such an analysis, I discuss how within this touted democracy those interested in making social policy changes have in fact shied away from using the legal process. While I focus on social policy advocates who promote civil rights, gender equality, the environment, and the rights of the ill, the secondary literature I draw on shows that the negative sentiments towards the courts penetrate through to a much larger segment of the population. I conclude in section five by evaluating some of the proposals aimed at "fixing" the legal system to make it more user-friendly for social policy advocates. As I suggest, such remedial measures are laced with numerous problems. Only through real, substantive legal reform can we hope to make the courts in India an arena available to those who otherwise perceive of themselves as excluded from the political process.
Number of Pages in PDF File: 39
JEL Classification: K33
Date posted: March 14, 2005
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