The problem

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THE World Justice Report, Rule of Law Index 2020, pegs India at 69 out of 128 countries. That is below the halfway mark and a drop from the year before.

On fundamental rights India declined eight places. On civil justice, which looks at whether people can access and afford civil justice, effective enforcement, the level of government influence and delay, India fell four places to 102 out of 126 countries. On criminal justice, a ranking that factors in effective investigation, delay, impartiality, and due process India fell one spot down to 78.

Nearer home in a first of its kind effort, the India Justice Reports of 2019 and 2020 use the dry truth of government data to measure the structural capacity of police, judiciary, legal aid and prisons – all subsystems of the justice delivery system – and rank each state’s ability to provide its people with justice services. Even the best state, Maharashtra does not reach a 6 on 10 rating and the worst, Uttar Pradesh, struggled to keep itself just above three.

That was a world ago before the pandemic time of sudden prolonged lockdowns and persisting contagion. The outcomes of the disruption of justice delivery systems – oppression, exploitation, abandonment, violence, discrimination – have fallen heavily on the most defenceless while commercial uncertainties and endless delay in adjudication promise to thwart rapid economic recovery.

All this and the grief and tragedy of millions called out for immediate recompense in the shape of easily available even-handed access to justice. Instead, the judiciary reduced its functioning to bare bones, selectively listing ‘urgent cases’ at its discretion. The most vulnerable suffered abusive and selective policing. Prison populations held in overcrowded unsanitary settings became involuntary and unfair prey to the infection and the legal aid system found itself overwhelmed. The over 17O guardian institutions dotted around the country that are especially designed to safeguard the human rights of us all, and the special interests of the disabled, women, children, Dalits, minorities, and tribals – were, for all intents and purposes, missing in action. The too frequent violation of fundamental rights came to be seen as an acceptable inevitability rather than a focus for fierce protection. These reactions have left many in doubt about the justice system’s future directions.

A critical examination of both past and present are an essential spur to fashioning future solutions: ifs and buts about future directions remain.

There is no doubt that the endemic structural infirmities of the formal justice system have existed for far too long without remedy. The stretching Covid era has only spotlighted the depth of crisis. Every subsystem and every one of their systems of oversight are hog-tied by financial and manpower shortfalls with all the consequent disarray and dysfunction that it brings.

Along with this comes an absence of a sure-footed value system on which to build future directions. Prevailing psyches within the system are riven between privileging ancient authoritarian notions of overlordship, danda, dhama, caste and class privilege and the imperative of new constitutional values that press for individual liberty, collective rights, freedom and reconstructive rather than retributive justice. The police are unsure if they are a service for the community or an alien controlling force; judicial pronouncements too often point up private belief dressed up as reasoned interpretation; and prisons remain uncertain if they are holding areas for inconvenient people or centres of rehabilitation.

Meanwhile, law and society constantly interact to evolve new norms. Even as we speak they are interacting to create influential perceptions of the relationship between families, communities and with government. Bolstered by manufactured apprehensions, the penal provisions of the Talak law, Citizen’s Amendment Laws and the vicious anti-conversion laws are already shaping public perceptions of minorities and the limits of their rights and remedies. Meanwhile, the new labour and farm codes – whether resisted or accepted – will prove to be an inflection point in future power relationships between labour and capital. As we design legal responses for post-Covid times do we look into the deep past to find a future we are culturally comfortable with or leave all that determinedly behind while we plough on into a brave new world?

Here too navigation is full of predicament. Barely does a new value proposition take hold when science and technology innovate to put forward new challenges. Jurisprudence and the resolution of ethical questions are unable to keep pace. Yet, in fear of being overwhelmed, modern technology is being adopted and encouraged as the magic bullet that can obliterate long-standing systemic challenges and criminal threats.

But it is unclear what overarching principles inform the acquisition and implementation of technology and whether they further or compromise fair trial norms, make the police more accountable, prisons more transparent and less prone to abuse of authority and violence.

The unthinking reliance on data and technology to bring equity and justice for all is belied by the strong resistance to accountability and opacities that seem hardwired into the system.

Presently the need for more and more surveillance and official, rather than citizen, convenience dominate acquisition. Inevitably the citizen is being digitized into so many bytes and algorithms that we must fear being atomized from individuals into mere numbers that can be configured to control our every move, predict our thoughts and perhaps even manipulate them to the purposes of the powerful. This is not fantasy. Even as we race forward, protection is feeble. Judges are not trained to understand sophisticated science in order to draw legal lines in protection of individual freedoms that must never be crossed. It will require much more skill and spine before the people can rely on the formal system to mediate power and deliver effective even-handed justice to all.

Yet, the experiences of the pandemic provide an opportunity to reimagine the delivery of justice. It offers the possibility to articulate a new vision of society and justice: of our relationship with each other based on equity, equality, mutual trust and respect (the essence of social capital) and our relationship with nature and technology.

The administration of justice cannot lapse back into ‘normalcy’. ‘Normalization’ is an unsure desire. What was ‘normal’ before Covid swept over the justice system was much better for some and terrible for others. If Covid working and Covid slippages and Covid compromises with justice become ‘routinized’ its ravages will surely cripple our post-Covid democracy.

True, reform and repair are encumbered with the lassitude of the past, exacerbated by the health and humanitarian crisis unfolding across the country and is made more difficult to traverse by the uncertainties of the future.

But positive futures are possible. Undoubtedly the increased integration of technology into the system can ease at least some of its pathologies and data can assist in better fiscal and structural management. Reorienting the police to build community trust by becoming the law upholding part of it rather than the law enforcing outsider is a relatively easy pathway to embrace – if there is the will. Beyond skilling up the judiciary and increasing human and physical resources prioritizing localization for doorstep delivery of justice offers low hanging fruit to pick. Expanded mediation; the spread of legal aid deeper into the community; encouragement for legal awareness far and wide such that it becomes the accepted common language for conflict resolution, all offer practical pathways to build a society genuinely based on rule of law.

What will shape outcomes as we gradually emerge out of this fraught moment remains in the balance. Will it be empathy, reason, deliberation, and science management, is in question. Global responses to the pandemic demonstrate it is only these positive impulses that have worked as the basis for medical and governance success: or will it be retention of the past imperfect, expediency and the convenience of those who work the system?

The jury is out.