The Slackness in India’s Justice System

Arun Kumar

Aryan Khan’s case reflects what is wrong in India’s system of justice. He was caught for allegedly being part of a nexus with international or national drug dealers. Much hype followed since he is the son of a mega movie star. Media, political parties and the general public presented, commented and followed the case.

As suddenly as the case erupted, it has been closed with the argument that no narcotic drugs were found. It is common knowledge that drugs flow in parties like the one that was planned on the ship. But, here a particular group of youngsters were targeted and it was not a general raid. What was the plan?

Message and Extortion

A Minister in the Maharashtra government accused the agency of using such cases for extortion. He was later arrested for having dealings with the family of a notorious don. If the allegations against him are true, he would know about use of drugs and the ways of functioning of the agency involved. So, his allegations about extortion are likely to be correct. The question then is, who was the real target and has a deal been struck?

The public will never get to know the truth but, what an inefficient way of doing things. It cannot be that some officer initiated the case on his own for extortion and harassment of a high profile person. Could the extortion not have been done quietly without media hype and public exposure? Mafia is known to extort without advertising their action. For the powers that be, it was also necessary to send a message to their detractors. The case is symptomatic of what the system is capable of.

Opposition leaders are often targeted by the agencies before important events, like, elections. Not that leaders do not commit illegality and financial irregularity. But when cases are initiated and then mostly kept in cold storage, if they do the bidding of the ruling dispensation, including joining the party then suspicion arises that politics is being played. Credibility of the cases and the agencies is dented in the public eye. Much time and energy is wasted and it is costly to the nation.

Cost to the Nation

What is the cost to the nation? Quite substantial. Agencies, courts, media, politicians and the public spent enormous amount of time discussing, reporting and debating the Aryan issue. If the time spent and the resources used is accounted, it could run into hundreds of crores of rupees. This would be the direct cost. For the moment, disregard the distress caused to the family and friends of the incarcerated. If various cases like this one are aggregated the sum would run into thousands of crores.

There are indirect costs too. If cases like these signal to the wealthy that they can also face similar situations, more would leave the country and become NRIs. 23,000 high net worth individuals (HNI) left the country between 2014 and 2017. 5,000 more left in 2018. According to one report, there were 270,000 HNI’s in India in 2017 so, 8.5% of them had left India. The rich have not just been voting with their feet but also indulging in flight of capital.

They not only take their capital out legally through the Liberalized Remittance Scheme (LRS) but also illegally through tax havens, as reveled in the various information hacks from Panama, BVI, Liechtenstein, etc. So, India is exporting capital when the poor in India are struggling to get capital for continuing their production.

Efficiency Dented

When those in power play favourites, the efficiency of use of capital is impacted. Threats can not only be used to extort but also to force entrepreneurs to sell out to the favoured businessmen. Such beneficiaries also get various other concessions from the system, like, loans for acquisition and expansion. That too, without due diligence and even if they do not have the experience of running such businesses. That is how in the past the banking system got saddled with huge non-performing assets (NPAs). Steps to clean up the NPAs since 2015 have set back the economy since credit availability declined setting back investment and production.

These various facets of the situation not only dent the investment climate but also the ease of doing business. This impacts the rate of growth of the economy and employment generation. The investment rate dropped from a peak of about 36% in 2012-13 to about 32% pre pandemic. So, the economy is not only not able to achieve its potential, it retrogresses further. For every 1% drop in the official rate of growth of the economy, the loss currently is Rs.2.5 lakh crore per annum. For a 4% drop in the rate of growth, the loss is Rs.10 lakh crore annually. This sum would be enough to take care of poverty in the country and unemployment.

There is an impact on international competitiveness. Inefficiencies mentioned above lead to higher costs. So, in spite of very cheap labour, many Indian products are unable to compete in price and quality terms with products of other countries. The result is a trade and current account deficit. India did not join RCEP at the last moment due to fear of competition from China.

Systemic Costs

A justice system manipulated by the powerful for their personal ends is bound to lead to high costs and inefficiency. First, there is the direct cost of putting in place the broken justice system and administering it. And then there is the cost of manipulating it while trying to carry on the pretense of justice. The system of justice delivery has to function contrary to its stated purpose resulting in additional costs.

Till now the reference was to how the system functions for the elite who are a part of it. What the non-elite who are at the margins of the system face is another matter.

Use of bull dozers without due process, shooting or killing people in custody, arrest of people without much evidence and invoking sedition and UAPA suggest that the government is implementing instant justice (`thok do’). This lowers the cost of administering justice and makes justice delivery efficient. Partisans of the rulers are also encouraged to follow the government’s example and have been delivering instant justice by killing and beating up people suspected of wrongs, imagined or otherwise.

The exclusion of the marginalized has its own costs. Societal tensions rise and people’s alienation grows leading to a diminution of faith in the system. That makes it difficult for those in power to make their writ run and causes policy failure which adds further to costs.

Why Have Laws?

If the present broken system is costly and inefficient, would it not be better to do away with laws and the justice delivery system. Those in power could then do what they would like to and would not have to justify their actions. Tens of thousands of crore spent on the police, judiciary and the regulatory agencies could be saved. That would also lead to `minimum government and maximum governance’.

Much money would be saved in selecting and manipulating the executive to choose spineless people in positions of authority. The cadres of the ruling party can be placed in the executive so that they could unhesitatingly implement the diktat of the rulers. There would also be no leakage of information to the media.

Courts would also become efficient where presently crores of cases are stuck. In jails, most of the prisoners are under trials, wasting much resources. Since in a majority of court cases government is the litigant immediate settlement would follow. Under trials would be in or out of jails, one way or the other thereby decongesting the jails. How efficient.

When diversity, federalism, democracy, human and civil rights are seen as impediments, they have to be subverted. But presently, pretense of respecting them has to be maintained and that makes the systems inefficient. In fact, some people close to the ruling elite have suggested that citizens only want good services and they will get them from us, so what is the need for elections. If that happens, another Rs 50,000 crore would be saved.

In brief, the present system of justice delivery is inefficient because it has to be manipulated by the rulers to achieve their goals. It is not a joke but the present constitution and the laws need to be amended to enshrine `might is right’ which would be unambiguous, clear, simple and efficient. It would be 1984 only 40 years later.

This article was first published in The Wire as The Inefficiencies of India’s Justice System on 8 June 2022.

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YouTube: Watch Dr Arun Kumar at IMPRI #WebPolicyTalk on Pandemic & Union Budget 2021: Implementation and the way forward

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Arun Kumar, Malcolm S. Adiseshiah Chair Professor, Institute of Social Sciences, New Delhi, and author of ‘Indian Economy’s Greatest Crisis: Impact of the Coronavirus and the Road Ahead‘.