The justice puzzle

There are two abiding mysteries in India that no one talks about. One is the failure of those who framed India’s Constitution to make justice a fundamental right. The other is the complete failure of activists to take this up.

I would not have expected such a basic flaw to be identified by a person from the corporate sector. They normally tend to be reticent about public policy even after retirement.

So we must congratulate R Gopalakrishnan, formerly of Hindustan Lever and Tata Sons and a fellow columnist in this newspaper, for worrying about this. In a book modestly titled Doodles on Leadership he does precisely this. The book is published by Rupa and Co. 

I have never met him or spoken to him. About a month ago, he wrote an article in this newspaper about how it was important for government officials to have empathy with the citizen.  I wrote to him with a thumbs-up emoji. He responded with a single abbreviated word, thnx. 

Since then we have exchanged four or five less-than-10-word emails about the justice issue. He then sent me his book to read. 

The chapters that he calls doodles have made me wonder: If this is how he doodles, what would he do if were to produce something more substantial, say, a business history of post-1991 India? A practitioner’s critique would surely be very useful for economist-historians who have dominated the business of writing business histories. 

Most of the seven of the 10 essays in this book are focussed on business and management issues. They form a subset of intellect of which most economists are blissfully unaware. They should be made aware of it. 

The last three are about other things like the Indian mindset and the relationship between a nation and its society of which business enterprises are a crucial part. 

And then, there is the chapter on justice, a clear outlier. It stops short of saying wtf. But the sheer bewilderment of the author is writ large.

Mr Gopalakrishnan makes a devastating point: India doesn’t really care about justice for the citizen. Had it done so, it would surely have made justice a fundamental right along with the rest of them.

He also tells us how the Law Commission has been in existence since 1834 — yes, for 185 years — and has been unable to persuade any government since then that justice should not only be seen to be done but actually be done. In India, he says giving the delays, it rarely is either done or seen to be done.

He cites the example of a bus conductor who, in 1973, was suspended for overcharging by five paise and pocketing the difference. The case is still pending. 

He also talks about the Jessica Lal case and the Nirbhaya case where the juvenile rapist was treated leniently on a technicality —  that when he committed the crime he was a few weeks short of attaining adulthood.

Then there is the S P S Rathore case in which the offender, a very senior police officer in Haryana got away after 26 years with a Rs 1,000 fine. He had been convicted of molesting a young girl.

He quotes the Law Commission to show that successive governments have deliberately kept the judiciary on a tight financial leash. This, by the way, is a complaint a former colleague of his in Hindustan Lever, S L Rao, used to make in the context of regulatory agencies — the government never gave the agencies enough money. Mr Rao was an early chairman of CERC.

Like a good manager, Mr Gopalakrishnan is not content to ask the questions. He also provides the answers.

The problem, he says, is like the broken window problem in criminology where everyone assumes that someone is repairing it but no one actually is.

He also cites Amartya Sen’s phrase “inflamed minds,” guiding public policy to suggest that outrage can be an effective tool in the hands of the public. But after watching some of our TV anchors I am not very persuaded by this.

Mr Gopalakrishnan has five solutions. One, allocate more money for justice delivery; two, de-emphasise procedure in favour of substance; three, limit the number of adjournments; four, penalise frivolous litigation; and five, a better self-correcting judiciary.

The first four are eminently doable but the last requires Russell’s Paradox to be solved: It asks who shaves the barber who only shaves those who do not shave themselves.