Transformational moment

Yesterday was an important and historical moment when the President of India swore in the 53rd Chief Justice of India. As Hon’ble Mr. Justice Surya Kant becomes the Chief Justice of India, he will have the onerous responsibility of reinvigorating the rule of law on the edifice of constitutionalism and democratic governance. The historical context of the judiciary playing the most important and influential role in establishing a rule-of-law society traces its origins to the Constituent Assembly. Dr. Granville Austin, in his book The Indian Constitution ~ Cornerstone of a Nation, observed, “The members of the Constituent Assembly brought to the framing of the Judicial provision of the Constitution an idealism equalled only by that shown towards Fundamental Rights.

Indeed, the Judiciary was seen as an extension of the Rights, for it was the courts that would give the Rights force… The courts were also idealised because, as guardians of the Constitution, they would be the expression of the new law created by Indians for Indians… The courts were, therefore, widely considered one of the most tangible evidences of independence.” The new CJI may consider focusing on four important aspects that will reinvigorate the rule of law with strong emphasis on institutional capacity building within the judiciary: Timelines and predictability in adjudication: No efforts to reinvigorate the rule of law can ignore the urgency of addressing the pendency in Indian courts. The backlog of more than 5 crore cases pending across all courts requires both reimagination and technology-driven solutions.

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NITI Aayog has provided a grim estimate that at the current rate of case disposal, it will take more than 300 years to clear pendency without pathbreaking reforms. This is obviously too long, and we simply cannot accept this as a practicable solution. India has succeeded in dealing with major challenges in other sectors, especially in public health. For example, India’s polio-eradication mission is considered one of the greatest public health achievements in history. The reason for this success was a combination of factors, including but not limited to scientific strategy, massive community mobilisation and support, political commitment and consensus, and international collaboration.

Justice Surya Kant, along with other judges of the Supreme Court of India, especially including judges who will serve on the Bench for the next decade, could launch a National Backlog Liquidation Drive 2025-2035. Strengthening judicial independence through institutional architecture: The role of strong and independent institutions is central to the ideal of the rule of law. The 2024 Nobel Laureates in the Economic Sciences ~ Daron Acemoglu, Simon Johnson and James Robinson ~ demonstrated the role and significance of societal institutions for a country’s prosperity and development. Through their research, they have underscored that societies with a poor rule of law and institutions that exploit the population do not generate growth or change for the better.

While the Constitution of India has provided the necessary framework for ensuring independence, there is a need for creating an enabling institutional architecture that will strengthen these mechanisms. There is a case for establishing a CJI-led National Judicial Financial Commission and a Judicial Infrastructure Mission. Both these initiatives will have to be deliberated at the highest levels of government, as they require significant political will and resources by the government at the state and central levels. These two initiatives have a direct correlation to our aspiration to become a US $7 trillion economy by 2035, as rule of law is indeed a central determinant of trust, investment, contract enforcement, dispute resolution, and institutional credibility.

Enforcing equality before the law through bail and criminal justice reforms: The crisis of undertrial prisoners ought to shake the foundations of India’s criminal justice system. More than 70 per cent of India’s prison population are undertrials (more than 85 per cent in some states), and hence, it is important to have greater legal clarity and jurisprudential consistency in bail jurisprudence. In a recent judgement in the case, Jagjeet Singh v. Ashish Mishra, Justice Surya Kant held, “…that a Court, while deciding an application for bail, should refrain from evaluating or undertaking a detailed assessment of evidence, as the same is not a relevant consideration at the threshold stage… an extensive consideration of merits which has the potential to prejudice either the case of the prosecution or the defence, is undesirable… ”.

The arbitrariness and unpredictability in bail jurisprudence begs a strong case for a judiciary led National Bail & Bond Guidelines framework that will provide valuable guidance to the High Courts and the District and Subordinate Courts. Securing access to justice for every citizen: The National Legal Services Authority needs significant empowerment and resources. It has been doing a phenomenal job within its limitations. However, the demands of seeking justice and social expectations generated through its contributions require a reimagination of access to justice for every citizen. Some of the important solutions that could be led by Justice Surya Kant relate to launching a National Legal Literacy Mission in which Panchayat-level legal clinics could be established through the contributions of young lawyers and law schools.

The legal aid framework also requires significant reform. Legal Aid 2.0 should focus on quality metrics for legal aid lawyers, with a stronger emphasis on specialised legal aid mechanisms for women, children, the elderly, and other vulnerable sections of society. Justice Surya Kant can consider institutionalising a 25-year vision for the Indian judiciary on the lines of the Viksit Bharat vision. A white paper entitled “Judiciary 2047: A Plan for India at 100” could comprehensively develop the vision for the future of the rule of law in India and what efforts need to be taken towards addressing these challenges.

(The writer, a Rhodes Scholar, is the Founding Vice Chancellor of O.P. Jindal Global University. He has degrees in law from the University of Delhi, University of Oxford, Harvard Law School and the University of Hong Kong and can be reached at VC@jgu.edu.in)