Chief Justice of India NV Ramana made waves with his comments over the weekend. Speaking at a legal meeting in Jaipur in the presence of Union law minister Kiren Rijiju and Rajasthan chief minister Ashok Gehlot, Mr Ramana remarked on the state of the Indian democracy and on an unfortunate aspect of the criminal justice system – the protracted incarceration of people not convicted for any crime.
The comments of the CJI on the state of Indian democracy are prescient. He is correct in noting that the ability to arrive at a common ground – key to lawmaking and governing processes in a representative democracy – are eroding due to plunging levels of trust between the government and the Opposition. This is actively hurting the deliberative processes that would assess critical bills and smoothen out kinks in pieces of controversial legislation. These structural infirmities creeping into the legislative process has meant that the responsibility of the judiciary is that much more – in fairly evaluating the import of laws and giving petitioners their day in court. Unfortunately, in recent years, rising hostilities has meant that the judiciary has been burdened with challenges to many laws involving disagreements that would have ordinarily been resolved on the floor of the House.
On the second issue Justice Ramana raised, the judiciary can do much more. Last week, the Supreme Court noted that several judgments passed over the decades stressing the primacy of bail and the use of imprisonment as an exception have only had partial success. The apex court called on the government to frame a new bail law and issued more stringent guidelines, but the CJI and the top court need to do more in convincing the subordinate judiciary to not accept the contentions of the prosecution at face value and grant police or judicial custody only as a rarity. Of course, to whittle down the population of undertrials in India’s prisons – which currently stands at two-thirds of the 460,000-odd inmates – the judiciary needs to act in concert with the prosecuting agencies. This is a long-term process and will need a national conversation, legislative intent and judicial drive. But in an environment where increasingly, police forces act on political considerations, and individual finds themselves at the mercy of an all-powerful State, the judiciary must uphold the high principles espoused in four decades of bail jurisprudence. Only then can the process stop becoming the punishment.