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India’s Justice System is No Longer Independent: Part II

Saraphin Dhanani
Friday, September 22, 2023, 11:34 AM
Part II delves into the strategies employed by the Modi government to undermine the autonomy of the judicial branch.
The swearing in of Prime Minister Narendra Modi in May 2014. (MEAphotogallery,; CC BY-NC-ND 2.0,

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The independence of India’s judiciary has faced mounting challenges during the tenure of Prime Minister Narendra Modi. The erosion of judicial autonomy has raised critical questions about the separation of powers, transparency, and the rule of law in the world’s largest democracy.

The first installment of this series explained the constitutional framework of India’s justice system. Its decay came sharply into focus when four senior justices of the Indian Supreme Court—Kurian Joseph, Jasti Chelameswar, Madan Lokur, and Ranjan Gogoi—publicly expressed their concerns that the judiciary was at risk of political capture.

Their collective protest forcefully denounced the central government’s obstruction of judicial appointments. Moreover, they raised pointed questions regarding Chief Justice of India (CJI) Dipak Misra’s handling of a sensitive investigation into the untimely death of a judge presiding over a high-profile case involving a leading figure of Modi’s Bharatiya Janata Party (BJP), Amit Shah. They also highlighted Misra’s alleged mismanagement of case assignments—particularly the assignment of politically salient cases or those involving BJP members to sympathetic judges. Underlying these issues was a pervasive feeling that the judiciary’s independence was gradually succumbing to the influence of the executive branch.

Stalled Judicial Appointments

The issue of stalled judicial appointments centers on the Modi government’s continued delay in finalizing the so-called memorandum of procedure (MoP), the document that formally outlines the procedure for appointing judges to the high courts and the Supreme Court. This delay in finalizing the MoP began in Modi’s first months as prime minister and was one of the first signals that alerted the judiciary that something was awry.

The situation reached a critical juncture when, in an unprecedented move, the Modi government unilaterally rejected the Supreme Court Collegium’s recommendation to appoint Gopal Subramanium to the Supreme Court, eschewing the customary route of returning the recommendation to the Collegium for further consideration. This marked a departure from established procedure—a bold action that spurned a core norm of Indian governance. 

As soon as the government rejected Subramanium’s nomination, Supreme Court institutional advocates mounted a public defense. They contended that Modi’s rejection of Subramanium appeared to be retaliation for Subramanium’s pivotal role in the 2005 Sohrabuddin Sheikh murder case. Sheikh was affiliated with the marble industry and an Indian Muslim who, along with his wife, Kausar Bi, and a family associate, Tulsi Prajapati, was allegedly killed in a staged encounter by the Gujarat police. Sheikh’s murder gained significant attention and controversy because it implicated Amit Shah—a trusted aide of Narendra Modi and the Home Minister of Gujarat at the time—as the principal conspirator in the case.

The circumstances surrounding the murder of Sheikh were complex. On the one hand, certain officials alleged Sheikh operated within the ranks of the Lashkar-e-Taiba terrorist organization based in Pakistan and was reportedly involved in a plot to assassinate Modi, who held the position of chief minister of Gujarat at the time. Other accounts suggested that Sheikh and his wife had extorted funds from marble traders. Many vehemently opposed these characterizations and contended that his murder was orchestrated by Amit Shah, who himself had deep-rooted connections within the marble industry and, these critics alleged, wanted Sheikh killed.

Whatever the facts underlying Sheikh’s murder, it was Gopal Subramanium who recommended that the Supreme Court move the investigation from the local Gujarat police to the Central Bureau of Investigation (CBI)—the national crime investigative agency—for a comprehensive and impartial review. While the CBI falls under the executive branch, it possesses investigative powers that are insulated from direct executive control, and it can be directed by the judiciary to carry out investigations on the judiciary’s behalf.

The CBI’s investigation ultimately led to Amit Shah’s arrest in 2010 and the leveling of triple murder charges against him. As a result of the case, Amit Shah was prohibited from entering Gujarat for a period of two years. Modi’s rejection of Subramanium’s nomination became emblematic of the growing intersection of politics and the judiciary in India. 

Rejecting Subramanium was just the beginning. Although the central government reversed course and eventually approved Subramanium’s appointment, the debacle made one thing very clear: The Modi government wasn’t going to play by the Collegium’s rules. Soon after, the Modi government announced its intention to replace the Collegium system altogether. Some commentators who did not support Modi agreed that the Collegium was an opaque institution in need of reform. But seen in the context of the Modi government’s other moves against the judiciary, the announcement raised serious concerns. 

These concerns were borne out when parliament passed the 99th Constitutional Amendment Act, introducing a new commission known as the National Judicial Appointments Commission (NJAC) under Article 124(A) to replace the Collegium system. The new commission retained some aspects of the Collegium system: The CJI and two senior judges (reduced from the customary four senior judges) would sit on the commission. The commission would also include the minister of law and justice and “two eminent personalities to be nominated by … the Prime Minister, the Chief Justice of India, and the Leader of the Opposition in the [lower house of parliament].”

Lawyers and judges protested, decrying the participation of the minister of law and justice in the naming of senior jurists. They further argued that the appointment of two “eminent personalities,” who were selected principally by the political branches of government, raised serious concerns regarding the judiciary’s independence.

Not long after the bill was signed into law, the Supreme Court moved swiftly to quash it. In 2015, the Supreme Court ruled that the 99th Constitutional Amendment Act, and in effect the NJAC, was unconstitutional. Having “two eminent personalities” from outside the judiciary and the inclusion of the Prime Minister in selecting those “eminent personalities,” the Court reasoned, was an affront to the judiciary’s independence.

And so began the Supreme Court’s efforts to cajole the Modi government to propose new amendments to the Collegium in the form of an MoP. It did, but the new MoP included clauses that reinforced executive authority in the judicial appointment process, most notably by giving the executive unilateral powers to reject any Collegium-recommended appointee on the basis of “national security.”

The proposed MoP also punched a hole in the so-called reiteration process of appointments. It granted the central government the authority to reject a Collegium recommendation without any obligation to reconsider it, even if the Collegium reiterated the same recommendation. Adding to the controversy, the MoP suggested that all candidates endorsed by the Collegium would undergo vetting by a committee comprising two retired judges and an “eminent person.” This move ran counter to the Supreme Court’s ruling that the involvement of nonjudicial individuals in appointment decisions posed an unconstitutional threat to judicial independence.

The Supreme Court vehemently rejected the government’s MoP proposal, leading to deadlock. The resulting standoff was marked by a significant escalation in the central government’s confrontation with the judiciary. Most notably, it began refusing to make judicial appointments. Vacancies in the high courts surged, rising from 35 percent in January 2015 to 42 percent in December 2015 and peaking at 45 percent in July 2016. This backlog left millions of cases pending, with 270 recommendations for the appointment of high court judges left unanswered by the central government, ultimately bringing the judicial system to a halt.

The CJI at the time, T.S. Thakur, pleaded directly with Modi to staff the judiciary, laying bare the harrowing reality of locked courtrooms becoming commonplace across India. Those pleas were ignored. 

Thakur was perhaps the last great guardian of democracy in the Indian judiciary. He staunchly resisted political influence on the courts, standing firm against the central government’s MoP proposals that he believed encroached on the judiciary’s authority over judicial appointments. On his retirement in 2017, Judge Jagdish Singh Khehar, who had led the bench in the NJAC matter and ruled the commission unconstitutional, became CJI and took a different approach in dealing with the central government.

Shortly after taking office, Khehar acquiesced to the central government’s proposed MoP, albeit without formally endorsing the procedures. Crucially, this MoP now granted the Modi government the authority to reject a judge’s appointment on undefined national security grounds. Also under Khehar’s leadership, the Supreme Court did nothing as a member of the BJP in parliament orchestrated the consolidation of a number of tribunals—which handled cases requiring specialized expertise—into other tribunals. This move also empowered the central government to dictate the rules governing the appointment and removal of tribunal judges and members. Notably, these changes were passed as a “money” bill—a type of bill known for being easier to pass than a standard bill— even though these changes stretched beyond the constitutional criteria for inclusion in a money bill.

Khehar’s concession on the MoP and reluctance to entertain a petition challenging the constitutionality of the money bill deepened the erosion of the judiciary’s remit and independence. His successor, Dipak Misra, was similarly deferential to the Modi administration. By the time Justices Joseph, Chelameswar, Lokur, and Gogoi held their unprecedented press conference sounding the alarm about the erosion of judicial independence and the MoP, the Modi administration had already undermined much of the judiciary’s authority.

In his book “Modi’s India: Hindu Nationalism and the Rise of Ethnic Democracy,” Christophe Jaffrelot painstakingly lays out example after example of judicial appointments that languished or were outright rejected by the Modi government, including the appointments of K.M. Joseph, Basharat Ali Khan, Mohammad Mansoor, Jayant Patel, Akil Kureshi, and Ramendra Jain, to name a few. The throughline among many of these and other rejections is that these judges and advocates had previously undermined Modi’s policies or ruled against prominent BJP members. 

Individuals the Collegium reiterated, like Basharat Ali Khan and Mohammad Mansoor, were denied for a second time. And judges who had reached a level of seniority in a particular high court and were in the running for chief judge were unilaterally transferred by the central government to a different high court without consulting the CJI—a flat-out breach of Article 222 of the Constitution.

Multiple CJIs succumbed to executive influence over judicial appointments by acquiescing to the Modi government’s proposed MoP. But what began as unconstitutional interference in the appointment of judges soon snowballed into something even more grave—influencing cases pending before the courts. 

Executive Influence Over Pending Cases 

At their press conference, Joseph, Chelameswar, Lokur, and Gogoi raised two other concerns in addition to those regarding judicial appointments: the mishandling of the investigation into the death of Judge Brijgopal Harkishan Loya (the judge presiding over the Sohrabuddin Sheikh murder case)  and Misra’s seemingly biased distribution of cases as “master of the roster.” What was motivating their angst? Misra’s violation of legal procedure, leading to favorable judgments for the central government.

The investigation into Loya’s death is a sad chapter of the aforementioned Sheikh murder case. By the time Modi assumed office as prime minister in 2014, Modi’s close associate and contemporaneous BJP president, Amit Shah, appealed his case to the Central Bureau of Investigation (CBI) court and sought to have it dismissed due to insufficient evidence proving his culpability in the triple homicide. The day before Shah’s court appearance, the judge overseeing the trial was abruptly transferred to another high court. Loya was appointed as the replacement, presiding over the case for roughly six months before his sudden death, which prevented him from rendering a verdict.

Mere weeks after Loya’s death, initially attributed to a heart attack, a new judge was appointed to the case. He considered the charges filed against Shah, decided not to hear the supporting evidence, and swiftly dropped all charges against Shah, BJP politicians and affiliates, and the officers implicated in the case. Remarkably, the CBI did not appeal the court’s decision. Journalists decried the CBI’s passivity, contending that the agency had lost its insulation from political influence and had effectively become an extension of the executive branch.

What unnerved Loya’s family was the timing and cause of his abrupt death. Loya’s sister upped the ante when she disclosed that her brother had confided in her before his death that he had been offered a 1 billion Indian rupee bribe (about $12 million) by then-chief justice of the Bombay Court, Mohit Shah, to deliver a favorable judgment for Amit Shah. In response, members of the bar and others filed petitions before the Bombay High Court and the Supreme Court, asking that Loya’s death be investigated. They provided evidence in the form of news clips and medical reports to cast doubt on the apparent cause of his death.

As CJI, Misra took up the matter. Procedurally, his bench was obligated to decide whether the petitioners had met the requirements for the court to order an investigation into the matter. If not, the petitions could be dismissed without expressing an opinion on Loya’s death.

Misra dismissed the petitions but not before rendering an unsolicited and constitutionally unneeded 114-page long judgment that “went into great factual detail, drew almost-definitive conclusions about what had happened, effectively closed the case for all time, and did it all on the basis of [the Bench’s] interpretation of the documents before it, untethered from the existing rules of evidence.” In other words, the court unilaterally rendered a verdict on a matter that was not before the court—as the petitions were only requesting an investigation— and did so without a proper trial. This verdict effectively translated into Amit Shah’s exoneration, as it precluded future investigations pertaining to Loya’s death from proceeding in court.

Misra’s handling of the Loya investigation highlighted the growing tendency within the judiciary to stonewall cases that would otherwise yield inconvenient rulings for the government. But Misra was not the most egregious actor in this regard. His successor, Justice Gogoi—the same judge who participated in the press conference—also adopted a do-nothing posture when a politically sensitive case came before him.

Under Gogoi’s tenure as CJI, the court faced criticism for one of its most contentious episodes of inaction. In August 2019, the Modi government unilaterally abolished Article 370 of the Indian Constitution, which revoked the autonomous status of Jammu and Kashmir, a historically self-governing state whose boundaries include territory contested among India, Pakistan, and China.

In revoking Jammu and Kashmir’s autonomy, the Modi government split the state into two “union territories” to be largely controlled by New Delhi—the Hindu-majority Jammu region, which the government allowed to form a legislative assembly, and the Buddhist-majority Ladakh region with a considerable Muslim population, which was prohibited from forming a legislative assembly. Further undermining the region’s autonomy, the central government used its powers under the controversial Public Safety Act of 1978 to engage in so-called preventive detention in the region. From political leaders to children, nearly 13,000 people were detained. In the wake of this assault on Indian citizens’ liberty, more than 600 habeas corpus petitions were filed in the Supreme Court challenging preventive detention. They remain pending to this day.

Gogoi’s failure to protect the liberty of the people of Jammu and Kashmir sent a clear message to the Modi government that Gogoi could be relied upon. Indeed, during his tenure on the Supreme Court, Gogoi actively supported the Modi government’s implementation of the deeply controversial National Register of Citizens (NRC) in the state of Assam.

The NRC required Assamese residents to prove their Indian citizenship by providing documentary evidence of their Indian heritage. If they could prove that their families had arrived in India before March 24, 1971, their citizenship would be considered verified.

Why this date in particular? In the days after March 24, 1971, Bangladesh declared independence from Pakistan, and a brutal, genocidal war erupted. Bangladeshi refugees—most of whom were Muslim—fled to India, and particularly to Assam, where they started new homes and raised their children and grandchildren. Despite their history in India, if their or their family’s arrival to Assam did not fall before the March 24, 1971 cutoff date, they would be deemed noncitizens of India. 

When the NRC was finally completed in August 2019, some 1.9 million people didn’t make the citizenship cut. Included in the “non-Indian” group were some ethnically Bangladeshi Hindus and others, including rural women, who didn’t have access to the necessary “documents” to prove their heritage, but the majority were ethnically Bangladeshi Muslims.

The chief minister of Assam declared that these “illegal foreigners” would be “barred from all constitutional rights, including fundamental and electoral,” such as Article 14 of the Indian Constitution, which guarantees to “any person equality before the law or the equal protection of the laws within the territory of India” (emphasis added). Genocide Watch issued a warning for the state of Assam as thousands were detained in Assam’s six “foreign” detention centers. Those who sought legal recourse before Indian government administrators and special “foreigners’ tribunals” were denied due process and the right to counsel. Many committed suicide in the wake of their lives being turned upside down. 

Many observers wondered whether the judiciary was asleep at the wheel. How could the highest court of the world’s largest democracy not respond to one of the most arbitrary and punitive policies in India’s recent history?

In fact, the Supreme Court was closely involved in the crafting of the NRC from the outset. Despite being an administrative process reserved for the executive and the administrative bodies, the court opted to “oversee” the NRC, gradually assuming greater authority over the project’s implementation. It helped decide NRC processes, deadlines, and even the types of documents that were admissible to prove citizenship, assuming significant executive responsibilities. As one scholar of Indian law noted, the court relinquished its role as the forum where “aggrieved people could go, if they felt that their rights were being violated—[because] after all, whom do you appeal to from an order of the Court, apart from the Court itself?”

By the time Gogoi took the reins as CJI in 2018, he institutionalized greater opacity over the administration of the NRC, including through his use of “sealed covers” that he had deployed in other politically sensitive cases. These covers kept the evidence he used to reach his judgments under seal, preventing citizens from assessing the logic of the Supreme Court’s decisions. Such a procedure can rightly be described as the “absolute antithesis of open justice” in a democratic society.  

By lending the Assamese NRC project the Supreme Court’s seal of approval, Gogoi cleared the way for the central government to expand its citizenship project. In December 2019, after Gogai ended his tenure as CJI, the BJP-led parliament passed the Citizenship Amendment Act (CAA), effectively implementing the NRC across India.

Most controversially, the CAA cleared a pathway for citizenship if the following three conditions were met: the migrant (a) was from Pakistan, Afghanistan, or Bangladesh; (b) was a member of the Hindu, Sikh, Christian, Buddhist, Jain, or Parsi religious communities; and (c) had arrived in India before December 31, 2014. Notably, undocumented Muslim immigrants and Muslim refugees (particularly those from historically persecuted sects, like Shias, Hazaras, and Ahmadis) were not eligible for citizenship. And because the Supreme Court exercised control over the administration of citizenship verification, there was no legal path to appeal violations of fundamental rights.

The court’s role in the reorganization of Jammu and Kashmir and the implementation of the NRC in Assam are just two examples, among others, of Gogoi’s subversion of the judiciary’s historical role. Even in the 1970s when Prime Minister Indira Gandhi declared a “national emergency,” suspending elections and civil liberties for two years, the judiciary retained its role as a forum where the aggrieved could challenge the executive’s infringement of their civil liberties. In contrast, today’s judges aren’t defying authoritarian tendencies of the executive. They’re accommodating them.

Beyond fundamental rights, the Supreme Court has also acted to undermine campaign finance restrictions. In 2017, before Gogoi assumed his CJI seat, the BJP introduced a bill under the guise of protecting donor privacy, which enabled donors to make anonymous donations to political parties in the form of “electoral bonds.” Critics, including the nonprofit Association for Democratic Reforms, argued that the scheme “opened the floodgates for corruption.” Notably, the bill eliminated the limit on the percentage of a company’s profits that could be used for political donations and removed the barrier that prevented subsidiaries of foreign companies from participating in India’s domestic electoral process. The latter seemingly undermined the Foreign Contribution Regulation Act, a law aimed at safeguarding the political process from foreign influence.

The Supreme Court held its first hearing on the matter in 2017 but did not reach a judgment. The next hearing was scheduled for February 2019, by which time Gogoi would assume the role of CJI. Gogoi, however, did not render a verdict until after elections had already begun in April. Ultimately he rejected the petitioners’ request for a stay on the electoral bonds scheme and instructed the political parties to submit details of the donations they received in a “sealed cover” to the Election Commission of India—setting the deadline for 11 days after the election. A final tally showed that 95 percent of the electoral bonds had been purchased in support of the BJP.

In his brief tenure, Gogoi expedited the erosion of judicial independence in India. The Supreme Court, “for all its patchy history,” according to Indian lawyer Gautam Bhatia, “was at least formally committed to the protection of individual rights as its primary task.” Under Gogoi’s leadership, he concludes, it drifted “from a Rights Court to an Executive Court.”

Who Is Really to Blame?

Executive capture of India’s judiciary did not happen overnight. Nor did it happen solely as the result of the executive’s actions or the ruling party’s leverage over the courts. The incentive structure of India’s judiciary—particularly with respect to post-retirement jobs—and judges’ apparent commitment to advancing their personal politics on the bench are additional contributing factors.

Unlike in the United States, India’s judiciary does not have lifetime appointments. Supreme Court and high court judges retire from the bench at the ages of 65 and 62, respectively. Judges may therefore have second careers after leaving the bench and are thereby incentivized to leverage their time on the bench to secure future employment. Gogoi is a case in point.

Gogoi’s one-year tenure as CJI on the Supreme Court yielded crucial rulings for the Modi government that helped facilitate its agenda: Gogoi’s oversight of the citizenship verification project in Assam and his silence on habeas petitions filed by family members of detained Kashmiris were previously discussed. Gogoi delivered another victory for the Modi government when he ruled that the site of the Babri Masjid—a mosque that was demolished by right-wing Hindu nationalists in 1992—belonged not to the India’s Muslim community but to a Hindu litigant who claimed that the site had historically been a temple honoring the Hindu god, Ram. The so-called “Ram temple” in Ayodhya had been at the core of the BJP’s Hindu nationalist politics for three decades. Gogoi’s ruling provided crucial judicial support to the Modi government and Hindu nationalists on this contentious political issue.

Four months after Gogoi’s retirement, the government appointed him to parliament. His appointment came on the heels of sexual harassment allegations during his tenure as a judge. In the end, the allegations were waved away and Gogoi exchanged his gavel for a velvet seat in parliament’s upper house. 

Gogoi wasn’t the first to have been rewarded by the Modi government. As early as 2014, the central government appointed former CJI Palanisamy Sathasivam to be governor of Kerala. His appointment, critics argue, may have been a function of quashing a First Information Report (a document prepared by the police about a cognizable offense that needs further investigation) against BJP leader Amit Shah in the aforementioned Sohrabuddin Sheikh murders case. Sathasivam’s appointment may also have been related to his commuting the death sentence of Dara Singh, a leader of the Hindu nationalist militant group Bajrang Dal, to life imprisonment for killing Australian missionary Graham Staines and his two children. “[T]hough Graham Staines and his two minor sons were burnt to death while they were sleeping inside a station wagon at Manoharpur,” Sathasivam wrote, “the intention was to teach a lesson to Graham Staines about his religious activities, namely, converting poor tribals to Christianity.”

But the promise of post-retirement jobs are not the only forces swaying judges. Their personal politics may motivate them to reach outcomes that are simultaneously beneficial to the executive and to their own desires. Gogoi, for instance, controlled the citizenship verification program in Assam with keen interest, according to journalists, because of his own ethnic ties to Assam. Despite calls by journalists that Gogoi recuse himself from the case, Gogoi charged full steam ahead. 

Moreover, the arguably biased rulings from certain higher court judges on issues like banning hijabs in schools or exonerating right-wing Hindu nationalists involved in the destruction of mosques, the demolition of Muslim homes, and the lynching of Muslims help bolster the Modi government’s pro-Hindu agenda. Do we imagine that while a majority of Indians have been galvanized by Modi’s Hindu nationalist ideology, India’s judges have been immune from such thoughts?

But perhaps the more urgent question is, why have such a high percentage of Indians become comfortable with the decay of judicial independence in their country? Indian journalist Debasish Roy Chowdhury’s interview on the Lawfare podcast paints a bleak picture about such democratic backsliding: “Fifty-three percent of Indians say that they would rather support military rule.” And in Chowdhury’s book To Kill a Democracy: India’s Passage to Despotism (co-authored with John Keane), he answers the question about judicial decay even more forcefully:

Inordinately slow, poorly organized, and popularly perceived to be the playground of the rich and the powerful, the criminal justice system is seen to be so broken that even the dysfunctional and corrupt police force is reckoned to have a better shot at ensuring justice than the courts. No one has arguably benefited more from this dysfunction than Modi himself. In 2002, Modi, then serving as the chief minister of Gujarat, was at the center of one of India’s bloodiest post-independence episodes. For days, Hindu mobs roamed the streets killing Muslims and burning their homes and businesses. While some Hindus were killed in reprisals, the episode was uniformly recognized as a startling, widespread attack on Gujarat’s Muslim community. 

Multiple investigations probed Modi’s involvement in the riots, particularly his failure to prevent the violence and protect the victims. Most consequential among these investigations was the probe conducted by the Special Investigation Team (SIT) appointed by the Supreme Court of India. After conducting an inquiry and examining various pieces of evidence, including eyewitness testimony and government records, the SIT concluded there was no “prosecutable evidence” against Modi and that there were insufficient grounds to proceed with criminal charges against him. 

But the ruling did not absolve Modi of responsibility in the eyes of much of the public. Critics pointed to the dysfunction of the justice system as a reason why Modi was treated with “kid gloves.” The SIT’s investigations were deemed inadequate by senior advocate Raju Ramachandran, who was also appointed by the Supreme Court as amicus curiae to investigate allegations of Modi’s complicity in the riots. Ramachandran concluded: “[T]he offences which can be made out against Shri Modi, at this prima facie stage” include “promoting enmity between different groups on grounds of religion and acts prejudicial to (the) maintenance of harmony.” Former Supreme Court Judge Parshuram Babaram Sawant also conducted an inquiry into the 2002 Gujarat riots as part of an unofficial body known as the Indian People’s Tribunal and, contrary to the SIT, found evidence to conclude that Chief Minister Modi bore some level of guilt for his actions in the Gujarat riots. “The genocide started after Narendra Modi instructed his ministers and top police officials against interfering” with the rioters, Sawant concluded. Despite these reports and criticisms, however, prosecutors have not pursued charges against Modi. 

Yet the handling of Modi’s case is just the tip of the iceberg when it comes to India’s judicial dysfunction. Far more common is gross mishandling of cases related to average citizens.

A jaw-dropping 44 million cases are still pending in Indian courts, 87 percent of them in the district, or lower, courts. Nearly 3.3 million cases have been pending for more than a decade. Cases remain pending for an average of 3.5 years in some states. And those that traverse the entirety of India’s judicial hierarchy—from the trial court to the Supreme Court—take, on average, 13.5 years to reach a resolution. With this mounting backlog, overworked judges spend an average of 2.5 minutes hearing cases and approximately 5 minutes reaching a judgment. A high court judge estimates that it would take 320 years to clear the backlog, which, perversely, acts ”as a shield [for courts] to evade politically sensitive issues,” notes one legal scholar.

Meanwhile, 70 percent of Indian prisoners are simply awaiting trial, even though only 45 percent of pretrial detainees are ever convicted. And there is no restitution for those wrongly detained, no matter the length of their detention.

Additionally, almost 80 percent of India’s 1.3 billion people qualify for legal aid, but pro-bono lawyers are hard to come by, and, due to chronic underfunding of the system, the quality of legal aid, when rendered, can be lackluster. The lucky few who do make it through the courthouse doors rarely consider themselves lucky. They routinely contend with “[b]ogus witnesses, fixers, and … large scale corruption [including] bribery against top judges.”

Put simply, when the aggrieved can’t turn to the judiciary to seek justice, why would they rise to defend it from decay?

Saraphin Dhanani is the Legal Fellow at the Lawfare Institute. She previously worked at the Estonian Ministry of Foreign Affairs for the Ambassador for Human Rights and in the Markets Group at the Federal Reserve Bank of New York. She holds a B.A. from Wellesley College, where she was a Fellow and Ambassador at the Madeleine Korbel Albright Institute, and a J.D. from Stanford Law School, where she was the Senior Articles Editor of the Stanford Law Review.

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