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Abstract

In this chapter, the author deliberates on a key characteristic of a liberal democratic society — a common expectation of justice. The author begins by examining citizens’ perceptions of the justice system that governs their lives, noting how notions of fairness, standards of justice, actors in the system, and other related institutions are all intertwined in how justice (and its administration) is felt and understood by citizens. He proposes that citizens themselves take the lead in efforts to improve perceptions of administration of justice, and suggests initial measures for how this may be done. He concludes that in doing so, citizens can shape the justice system, becoming producers (and not just consumers) of the system they desire and expect.

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One of the things that distinguishes a liberal democratic society from others is a common expectation of justice. In other forms of government, such as monarchies, dictatorships, and even some illiberal democracies that grant special rights to some people and not to others, people accept intuitively that they should not have any rational expectation of being treated uniformly and fairly. They recognise that systems of dispensing justice are not rational, and their arbitrariness can inflict harsh outcomes upon various people.

This difference, therefore, is an important metric of the success of a democracy. Do ordinary people feel that the system of justice that governs their lives is accessible and fair? Do they believe that governments exist partly to provide them protections through due processes, and are they confident that these protections are available to them, personally?

4 In asking these questions, we must make four important distinctions.

The first is between the professed standards of the justice system and the actual ones, because the perception of the system is much more connected to the latter, and even the strongest defence of the former is no substitute for the latter. People may very well be ignorant of how a justice system ought to function, and yet have an opinion of it based on what they experience and observe.

The second is that the lines of separation between different parts of the machinery of justice, such as the police, the courts, and the correctional facilities may all blur in the minds of the public, so that quite often their perceptions of the justice system may, in fact, be more accurately their perceptions of other institutions and processes.

The third is that the actors in the justice system, namely, the judges, lawyers, and litigants, not only experience the system but also represent it to others. And therefore, their perception of the justice system is particularly relevant to any effort to shape the opinion of the public.

The fourth is that justice is a very large word, and is deeply connected to notions of fairness, as a result of which the perception of unfairness in any aspect of life — for instance, an accident that involves a victim who is too poor to afford rapid care, and therefore suffers irreparable harm — can often lead, correctly or otherwise, to a perception of injustice too.

To these caveats, it must be added that the justice system itself has not made any visible attempt to discern for itself how either the public that it serves or members of its own fraternity perceive it. That, nonetheless, is the terrain in which we must carry out our exploration.

WHAT SHAPES OUR PERCEPTIONS?

Our journey can take advantage of the many others that have asked such questions before. These remind us that the broad contours of the perceptions of justice span at least the following, and may be much more:

1. A deliberately inclusive recruitment process for positions in justice administration that recognises that the confidence of the public results in part from believing that they themselves could belong among the administrators.

2. An active programme of soliciting the views of the public and the key actors in the justice system about its functioning.

3. A parallel programme of measurement of the efficacy of the system, a third programme to publicise — and thereby acknowledge and accept — the findings of such surveys routinely.

4. A fourth programme to identify the gaps that must be closed to improve the administration of justice.

5. To top these off, a participatory system of addressing the deficits in which many stakeholders place faith not only because it is thorough, but especially because it includes them.

I believe it is fair to say that none of these exists meaningfully in India today. The word ‘meaningfully’ is especially pertinent here, because one of the failures of governance throughout the 70 years of our independent existence has been the repeated claim of governments that many things are being done, but without the accompanying acknowledgement that very little of them is being done.

5 The failure, however, begins well before any of these. Precisely because the perception of justice correlates to perceptions of fairness, the battle of perceptions cannot be won without first focusing on fairness. For the public, in particular, this is most important; the perceptions of lawyers or litigants may be shaped more strongly by their direct experiences within the halls of justice administration, but for many others, it is, in fact, their perception of fairness that substantially determines how they view the administration of justice.

Why is that? Can the justice system be really held responsible for perceptions beyond those caused by its direct actions? Emphatically, the answer is yes. For the simple reason that any system is judged not only by its acts of commission but equally by many others that are acts of omission as well. Arguably, in weak justice systems, negative perceptions among the public result far more frequently from acts of omission than from acts of commission. A weak system, after all, does less of what it is supposed to.

Omission is in fact everywhere and is all the more reason why its impact on perceptions is stronger. If an accident leads to police processes that citizens feel afraid to engage in, if the force of social hierarchies is oppressive and strong, if poverty limits the opportunities of a child, then it is inevitable that people will feel the absence of law as a protective force in their lives. Their encounters with unfairness may be outside the courts, but surely they are wont to ask, where is the protection of the courts against these unfair things? Is justice to be only inside a few halls, with only an insufficient measure of it outside?

Nor has the judicial response to evident maladministration in the executive been any comfort to the public. It is plainly evident to most citizens that the political system is in dire need of cleansing, and yet the overwhelming majority of those indulging in corruption appear to do so with impunity, even despite being hauled before the courts on many occasions. There is simply no way for the common man, who suffers countless indignities as a result of corruption, to square these observations without concluding that the justice system too, and not only the executive, is short-changing him. Surely the courts must do more, he would contend.

This, in turn, suggests that the best hope for a stronger system of administration of justice lies in adding to its list of functions, despite the widespread view that it is poor at doing the things it already does. The way forward, it seems, is in accepting the full burden of responsibilities that citizens place upon a justice system; choosing only a subset of those to focus on, however well-intended, is itself counterproductive.

WHOSE RESPONSIBILITY?

It is natural to presume that the omissions must be attended to by either the governments, both at centre and state, or by the judiciary. But that only tells us that the buck must stop with one of these institutions; it does not tell us how we might decide which one. Moreover, a particularly keen tussle of late between the executive and the judiciary on other matters has brought about a situation where even deciding this is not easy.

Will the judiciary look upon a government’s efforts to reform the administration of justice as a positive step, or as an unwarranted interference upon its sphere? Will the judiciary itself take up the task, then, or will it persist with the refrain that judges cannot be compelled either by law or by public opinion to take such steps until they themselves decide it is appropriate to do so? Somewhere in the cracks between the answers to these questions, the omissions persist.

6 There is, however, a way out of this logjam. Perhaps the citizens could take upon themselves the task of setting the course for higher accountability from the justice system.

In recent years, we have witnessed a dramatic shift in politics; whereas representative government was considered the right arrangement for the country at the time of independence and for many decades thereafter, now there is an increasing chorus for a more participatory alternative. Beginning with a small number of people taking responsibility for civic actions, this movement has grown to now seek new goals for governance itself, including in particular an emphasis on direct decision-making.

Let us cast our minds back to that most often-cited description of democracy, that it is a system of government of the people, for the people, and by the people, and ask again whether this implies that while there are many things we wish our representatives in government to do for us, and still others that those who are employed in government must do, beyond these two lies another set of things that citizens must themselves do. Even more precisely, our performance of these things should be seen as acts of ‘self-governance’, and not merely matters of civic pride or community service.

Some have argued that there are limits to what the people can do, and that representative systems are necessary to keep governance from descending into chaos. Yes and no, those limits may well be the result of the fact that thus far the embrace of participatory democracy has been marginal. It is conceivable that if we were to imagine a more subsidiarist structure for governance, a far greater number of things could be done through direct actions of citizens and interest groups among them, and fewer tasks would be in the domain of representatives.

The hope for this shift is particularly strong because the nascent efforts are confined not to any one country, but occurring in many nations around the world. And the success of such efforts anywhere could reset the boundary between participatory and representative governance in many other countries too.

Let us assume, therefore, that is quite conceivable that some of the dissatisfaction with the administration of justice could begin to be addressed by citizens themselves. Where could such an exercise begin? And who among the citizens would be particularly well-suited to it?

In answer, we can look to precedents, appropriately. In many robust democracies around the world, Bar associations have been at the forefront of leading the move to measuring and responding to public perceptions of the justice system. Their members potentially possess the necessary knowledge to chart the course and are at the same time citizens themselves too. The public has a very deep and abiding interest in the proper functioning of a justice system and is therefore bound by a responsibility to itself to seek it. Collectives of lawyers and citizens working together could very well begin to pose, and seek answers to questions about the efficacy of justice administration, and light a path for many others to follow.

Indeed, we may even be seeing that. In the legal community, the recognition of and search for ‘public interest’ has in the past been confined to a narrow definition, which allows for arguments and decisions in the courts. But in fact, the law takes on its full purpose by being present to citizens everywhere else first, and only consequentially in the courts. It follows quite naturally, therefore, that the public interest too should be sought more fully. That recognition is now dawning, with a few advocates venturing into new territories in their search for ways to contribute to the public interest.

Judges and lawmakers, for their part, could strengthen this quest, and some surely would, in the process adding wisdom and heft to the efforts 7 all around. But in the current scenario, we would do better to begin this effort as a public initiative, and find more allies and partners as we progress.

STARTING POINTS

How should we set the contours of a new effort to measure and improve perceptions of the administration of justice, keeping in mind that our beginnings are not within the judiciary or the executive, but among private citizens? Here, rather than reinvent the wheel, we could look at the recommendations from other efforts in democracies, and look for clues within them. A brief survey of Bar associations’ suggestions to promote the perception of justice pointed to three recurring themes, and the first steps could be along these lines.

1. We must educate the public about laws, especially the ones that protect their rights, partly with the goal of promoting positive views about the justice system. We must also educate the public about the processes by which justice is administered, with the specific purpose of demystifying these.

2. Opportunities for the learning of the law among communities and groups that are under-represented in the justice system — such as women and scheduled castes and tribes in particular — must be encouraged. Alongside this, active recruitment of such persons into positions in the system must be promoted.

3. Public defenders’ programmes must be strengthened and people must be given greater access to legal aid in the protection of their rights.

Governments, of course, are well-suited to pursue these goals, but there is no reason why a strong beginning in search of them cannot be made elsewhere. Philanthropic foundations focused on legal reforms, law firms with active corporate social responsibility (CSR) initiatives, and the legal education community share a common interest in all of these, and coalitions of such groups are forming to spawn systematic efforts to these goals. Realising them fully will one day require the participation of governments and the justice system itself, but it is increasingly clear that we will arrive sooner upon that day if we set out to get there without waiting for public institutions.

Educating the public about the justice system, in particular, may be something that the government is best left out of, considering that in a very high proportion of cases in the courts in India, the government itself is one of the interested parties. In those cases, what the public needs is awareness of the law in ways that allow legal protections to be used against governments.

One much-needed focus of such interventions is in schools. The sharp divergence of learning trajectories into science, commerce, and the arts in high school itself for most students has led to a situation where only a small sliver of the population receives any education at all about the laws, apart from what they receive in civics classes. This needs to be addressed, in much the same way that environmental science was made part of the wider school curriculum for all students some years ago.

The rising capabilities for distance education through the use of internet, especially on phones, should also be explored more strongly. In particular, there could be a repository of legal awareness materials covering different aspects of the administration of justice. Such a repository, a kind of Wikipedia for a specific purpose, could benefit from the contributions of citizens based on their actual experiences.

8 SUMMARY

The laws of the land acquire force through institutions, but they acquire acceptance through processes by which citizens encounter them. Perceptions of justice result directly from citizens’ approval of these processes. However, without the necessary means to comprehend and be part of those processes, citizens find the laws and the justice system to be aloof. Their everyday encounters also reinforce the view that the protections of law are not available to ordinary citizens, especially unfortunate ones. A deliberate programme to improve perceptions of justice is needed to overcome this.

Such an effort need not be left to formal institutions alone. In fact, there is considerable evidence that much of this can be done without waiting for governments and the judiciary, and that a lot of this could be done better and faster if this path is chosen. Citizenship works best when people are themselves direct producers, and then consumers of the systems by which they choose to govern themselves, rather than relying upon either the executive or the judiciary to chart that course for us.

This is a potentially fruitful choice, judging by recent trends. Many of the concerns and demands articulated by citizens’ groups are now finding their way to the forefront of the national agenda. There is every reason to hope that creating a stronger system of administration of justice, and benefiting from it in the form of higher perceptions of justice, can also be part of that new narrative.