📰 India’s judiciary and the slackening cog of trust
Departures from substantive and procedural justice need deep scrutiny as the fallout could severely imperil governance
•Centrality of justice in human lives is summed up in a few words by the Greek philosopher, Aristotle: “It is in justice that the ordering of society is centred.” Yet, a vast majority of countries have highly corrupt judiciaries.
•Judicial corruption takes two forms: political interference in the judicial process by the legislative or executive branch, and bribery. Despite accumulation of evidence on corrupt practices, the pressure to rule in favour of political interests remains intense. And for judges who refuse to comply, political retaliation can be swift and harsh. Bribery can occur throughout the chain of the judicial process: judges may accept bribes to delay or accelerate verdicts, accept or deny appeals, or simply to decide a case in a certain way. Court officials coax bribes for free services; and lawyers charge additional “fees” to expedite or delay cases.
A distinction
•Our focus here is on the functioning of and erosion of trust in the lower judiciary comprising high courts, and district and sessions courts. A distinction between substantive and procedural justice is helpful. Substantive justice is associated with whether the statutes, case law and unwritten legal principles are morally justified (e.g., freedom to pursue any religion), while procedural justice is associated with fair and impartial decision procedures. Many outdated/dysfunctional laws or statutes have not been repealed because of the tardiness of legal reform both at the Union and State government levels. Worse, there have been blatant violations of constitutional provisions. The Citizenship (Amendment) Act (December 2019) provides citizenship to — except Muslims — Hindus, Buddhists, Sikhs, Jains, Parsis and Christians who came to India from Pakistan, Bangladesh and Afghanistan on or before December 31, 2014. But this flies in the face of secularism and is thus a violation of substantive justice. A striking example of tortuous delay in the delivery of justice is the case of Lal Bihari. He was officially declared dead in 1975, struggled to prove that he was alive (though deceased in the records) and was finally declared alive in 1994 (Debroy, 2021). Thus, both departures from substantive and procedural justice need deep scrutiny. Alongside procedural delays, endemic corruption and mounting shares of under-trial inmates with durations of three to five years point to stark failures of procedural justice and to some extent of substantive justice.
Under the different regimes
•All was not well with the lower judiciary under the United Progressive Alliance regime. According to Transparency International (TI 2011), 45% of people who had come in contact with the judiciary between July 2009 and July 2010 had paid a bribe to the judiciary. The most common reason for paying the bribes was to “speed things up”. There were “fixed” rates for a quick divorce, bail, and other procedures (Banerjee, 2012). The Asian Human Rights Commission (AHRC) (April 2013) estimates that for every ₹2 in official court fees, at least ₹ 1,000 is spent in bribes in bringing a petition to the court.
•There is a scarcity of evidence on bribes and malfeasance under the National Democratic Alliance (NDA). A few broad-brush treatments are, however, worrying. Freedom House’s ‘Freedom in the World 2016 report for India’ states that “the lower levels of the judiciary in particular have been rife with corruption” (Freedom House 2016). The GAN Business Anti-Corruption Portal reports that, “[t]here is a high risk of corruption when dealing with India’s judiciary, especially at the lower court levels. Bribes and irregular payments are often exchanged in return for favourable court decisions” (GAN Integrity 2017).
•Allegations of corruption against High Court judges abound. For example, Tis [Tiz] Hazari District Court Senior Civil Judge, Rachna Tiwari Lakhanpal, was arrested in September 2016 for allegedly accepting a bribe to rule in favour of a complainant in a case. Such examples are indicative of the widespread malaise of corruption in the lower judiciary. Worse, there are glaring examples of anti-Muslim bias, often followed by extra-judicial killings by the police. Anti-Muslim bias alone may not result in erosion of trust but if combined with unprovoked and brutal violence against them (e.g., lynching of innocent cattle traders) is bound to.
Case pendency
•According to the National Judicial Data Grid, as of April 12, 2017, there are 24,186,566 pending cases in India’s district courts, of which 2,317,448 (9.58%) have been pending for over 10 years, and 3,975,717 (16.44%) have been pending for between five and 10 years. As of December 31, 2015, there were 4,432 vacancies in the posts of [subordinate court] judicial officers, representing about 22% of the sanctioned strength. In the case of the High Courts, 458 of the 1,079 posts, representing 42% of the sanctioned strength, were vacant as of June 2016. Thus, severe backlogging and understaffing persisted, as also archaic and complex procedures of delivery of justice.
•Extreme centralisation of power in the Centre and a blatant violation of democratic values under the NDA have had disastrous consequences in terms of violent clashes, loss of lives, religious discord, assaults on academic freedom, and suppression and manipulation of mass media. Exercise of extra-constitutional authority by the central and State governments, weakening of accountability mechanisms, widespread corruption in the lower judiciary and the police, with likely collusion between them, the perverted beliefs of the latter towards Muslims, other minorities and lower caste Hindus, a proclivity to deliver instant justice, extra-judicial killings, filing first information reports against innocent victims of mob lynching — specifically, Muslim cattle traders while the perpetrators of violence are allowed to get away — have left deep scars on the national psyche. It may seem far- fetched but it is not, as these are unmistakable signs of abject failure of governance.
•Our analysis reinforces this concern. While trust in the judiciary is positively and significantly related to the share of undertrials for three to five years under total prisoners, it is negatively and significantly related to the square of share of under-trials. However, the negative effect nearly offsets the positive effect. So, while trust in the judiciary marginally rises with the proportion of undertrials until the threshold (0.267) is reached, it decreases beyond that point as the proportion of under-trial inmates rises.
•In sum, erosion of trust in the judiciary could severely imperil governance.
Universities need greater funding, autonomy, and tolerance of activities by students and faculty
•Are Indian universities under deliberate siege? Spending on higher education (as a % of government expenditure) has stagnated at 1.3-1.5% since 2012. Meanwhile, the Ministry of Education continues to push higher education institutions to increase their intake capacity by 25% (in a push to implement the 10% quota for economically weaker sections), while the Ministry of Finance has sought to ban the creation of new teaching posts (Mohanty Basant Kumar, September 2020). At the central level, student financial aid was cut to ₹2,078 crore in FY 2022-23 from ₹2,482 crore in FY 2021-22; allocations for research and innovation were down by 8%, reaching ₹218 crore. Our once-great institutions of learning are beset by multiple crises – a financial crunch at the university level, a deficit in research opportunities for faculty, poor infrastructure and learning outcomes for students; with any protests hit hard by police brutality and campus repression. Is an apathetic, bureaucratic state preventing universities from blooming?
Cash-strapped institutions
•Investments in university infrastructure have shrunk. Most Indian universities and colleges have overcrowded classrooms, poor ventilation and sanitation, and unsatisfactory hostel accommodation. The Higher Education Financing Agency (HEFA), which provides funding for all infrastructure loans to institutions, saw its budget reduced from ₹2,000 crore in FY 20-21 to ₹1 crore in FY 21-22. Instead, universities have been forced to take loans, but have few avenues to tap into.
•Even day-to-day running costs are hard to meet. The University Grants Commission (UGC) was allocated ₹4,900 crore in FY 2022-23 versus ₹4,693 in FY 2021-22, but stifled cash flow has led to delays in salary payments for deemed/central universities. Hence, most universities are running on a deficit — Madras University saw an accumulated deficit of over ₹100 crore, forcing it to seek a ₹88 crore grant from the State government (Raman A. Ragu, March 2022). Twelve colleges of Delhi University have seen a financial shortfall, with allocations by the state reduced by nearly half (for example, Deen Dayal Upadhayaya College was allocated ₹28 crore versus a requirement of ₹42 crore in 2021). Faculty members have faced salary delays for months, with salaries coming in weeks later (examples include Shri Lal Bahadur Shastri National Sanskrit University, Delhi University, Visva-Bharati University, Nagaland University and Jharkhand University (Mohanty Basant Kumar, February 2021; Ara Ismat, November 2020). This has led to cuts in discretionary spending – many colleges in Delhi are unable to afford subscriptions to basic databases and journals. There is an urgent need to increased funding, along with establishing dedicated funding streams for infrastructure grants/loans and financial aid. Universities can also be freed up to utilise other revenue streams such as start-up royalties and advertising.
•Research grants have also shriveled up. Grants under the UGC’s minor and major research project schemes have declined from ₹42.7 crore in FY 2016-17 to ₹38 lakh in FY 2020-21 (Mohanty Basant Kumar, February 2022). India has over 1,040 universities, but just 2.7% offer PhD programmes, given paltry funding and poor infrastructure. The National Research Foundation (NRF), to improve research infrastructure in universities, has not yet been approved, and may have a limited budget ($5-6 billion spread over five years). Clearly, funding for research needs to rise significantly, with institutions like the NRF supplementing (and not replacing) existing schemes (including those from the Ministry of Science). Funding should also be allocated to enable course-based research experiences for undergraduates.
Fall in standards
•Meanwhile, academic standards and processes are not being maintained. Examination paper leaks have become common – the Hindi examination of the National Eligibility Test of the UGC, which enables post-graduate students who pass to teach in State and Central colleges, was leaked in June 2021. Candidates have anecdotally highlighted examination centre operators charging ₹3 lakh per candidate to help them pass (Baruah Sukrita, July 2021). More recently, Veer Narmad South Gujarat University rescheduled exams for select B.Com and B.A courses after a paper was leaked. Such institutions have failed to protect the sanctity of their examinations. Improving this will require a decentralised approach, with universities allowed to take decisions on academic programmes, promotions, cohort size, etc.
•India’s universities have historically been bastions of free expression and a hub of nationalism. The Central Hindu College (Delhi), inaugurated by Madan Mohan Malaviya, was a centre for political debate during the freedom struggle, with students and teachers joining the Quit India movement, and involved in the defence of Rash Behari Bose and Lala Har Dayal in 1915. Students from the college were also involved in helping resettle partition refugees in 1947. Queen Mary’s College, Chennai, is noted to have witnessed multiple pro-Quit India Movement protests. Students involved in these would often be detained on Marina Beach road penitentiary. More recently, students from Jawaharlal Nehru University, Banaras Hindu University, Delhi University, and Jamia Millia Islamia were associated with the anti-corruption movement, led by Anna Hazare. This delicate balance between the right to free expression and nationalism has been fostered across political regimes, with the leadership aware of the role of universities in strengthening democracy and civil society. And yet, of late, institutional apathy has given way to repression. Police action against students of select universities (JNU, Jamia Millia, for instance) for campus protests, along with arrests and incarceration, have cast a pall on free expression in campuses. Students and faculty members are routinely castigated as ‘anti-national’, among other epithets. We need to embrace tolerance for a diversity of views in our campuses – our students have formative experiences there and must have the space to define themselves as individuals. If free expression is not fostered, how will our universities champion critical thinking?
•India’s higher education institutions exist in a funerary state. This is reflected in global rankings – there are just eight Indian universities in the Top 500 in the QS World University Rankings. The National Education Policy (2020) has sought to foster critical thinking and problem solving, along with social, ethical and emotional capacities and dispositions. Enabling this will require an encouraging ecosystem, with greater funding, autonomy and tolerance of universities (and activities by students/faculty). Without this, talented Indian citizens will continue to escape abroad, while policymakers lament India’s brain drain.
📰 The government in business
India, like the Chinese and Singapore governments, can earn much more from government investments
•The Government of Singapore Investment Corporation (GIC) invests internationally in equities. It owned shares worth about ₹1.09 lakh crore at the end of March 2022 in India alone. Around the world, GIC investments amount to about ₹55 lakh crore. GIC is the eight largest wealth management fund in the world. The money doubled in real terms in the last 20 years. This money is also used by the government for public welfare. Another arm of the Singapore government, Temasek Holdings, has investments worth ₹22 lakh crore. Their investments dwarf some aspects of the Indian economy itself: the Indian government’s budget expenditure for 2022-23 is ₹39.45 lakh crore. The Singapore government’s investments are many times that.
•China is doing the same. The Municipal Government of Hefei invested $787 million to acquire a 17% stake in Nio’s core business and shortly after that exited making a profit of 5.5 times its investment. By 2017, Chinese government-owned companies had invested ₹67.5 lakh crore in overseas companies. This is about 27% of India’s GDP.
Only disinvestment
•Meanwhile, in India, we are disinvesting. The total market value of Indian government holdings is only ₹13 lakh crore, far less than China or even Singapore. Overseas holdings through these companies is negligible. The Navratna PSUs are performing well, but are being sold. Instead, can they invest overseas and increase their wealth as China is doing? In China, one company, the China National Petroleum Corporation, has assets of over $600 billion. There is no move there to disinvest. Perhaps the Chinese government wants to use the economic clout of its PSUs for its global ambitions. As China increases its global influence, India is bartering away one source of such influence – its ability to invest overseas and create greater economic clout.
•The prevailing ideology that the government has no business to be in business is used to justify disinvestment. The real reason is the growing government deficit. Some key corporate investors are waiting in the wings to gain full control of India’s natural resources through these disinvestments. It is like killing the golden goose that laid the eggs. For instance, the total dividend earned by the Indian government through PSUs is ₹50,000 crore. If India learns from the Chinese and Singapore governments, it can earn much more from government investments as well. India uses a western ideology about government-owned companies, but forgets that what the West preaches is for others and what it practices is in national self-interest. The world’s list of top asset-holding PSUs includes the U.S., Israel and the European Union counties. But there are none from India.
•India has allowed the baggage of inefficient PSUs to cloud its thinking. While the smaller and loss-making ones need to be disinvested, the profitable ones can be reformed. The only problem in India is archaic rules governing PSUs and political interference. There is excellent talent in the PSUs. Other talent from the private sector can also be brought in. Salaries for key top personnel should be in line with worldwide best practices, along with real accountability. The success of enterprises and startups shows that there is abundant managerial talent, which needs to be harnessed in national interest.
Learning lessons
•If we avoid the smoke screen of ideology, there are many reasons for learning from other countries, notably Singapore. The first is national and public interest. The source of wealth has shifted from land to natural resources, to the industrial sector and now to the knowledge economy. Assets are largely in the financial markets today. There is enough and more wealth to be made there as wealth funds, well-known international investors and some other governments around the world are doing. If the Indian government invests like Singapore, that will give it much more funds than disinvestment ever can. Meanwhile, ownership remains intact. A few caveats are required. Singapore invests in long-term assets, and does not take risky decisions. Another powerful reason is managing government finances. India is raising taxes by the week, especially on diesel and petrol. The only avenue for revenue generation seems to be taxes. However, markets, wealth management and dividends are not explored. If markets create wealth, why can’t the government create it and use it for creating prosperity for the public?
•India is capable of doing this if we look for talent from our financial markets rather than from the government only. The example from the 1980s in telecom, recent examples of Aadhaar, and the creation now of a government platform called ONDC to increase marketing power of ordinary kirana stores shows how private sector talent can be harnessed for public good. There are well-known entrepreneurs and wealth managers in the stock markets. The government can surely use their talent for the greater public good.
