After Dalveer Bhandari what?

India, the principal beneficiary of Bhandari's re-election to the ICJ, must think of cleansing its justice system to narrow the gap between domestic reality and international reputation

It is undoubtedly a great achievement for Dalveer Bhandari to make it where the courageous Radhabinod Pal didn’t 70 years ago. But amidst the wringing of hands and gnashing of teeth in Britain at Sir Christopher Greenwood’s defeat for a seat on the International Court of Justice, I cannot but reflect whether the honour in the Hague will make any difference to India’s tortuous legal system.

Indians don’t need to read Penderel Moon’s incisive little book, Strangers in India, to know that delay and dilatoriness are probably the least of the problems in obtaining justice. Having studied the law of contracts at a British university, I was surprised to be told on my return to India that the hoary principle of Anglo-Saxon jurisprudence — Falsus in uno, falsus in omnibus or if one detail is false, the entire case is false — didn’t apply in India.

Surprise gave way to shock when a senior advocate interjected only half in jest, “What does ‘uno’ matter when the whole ‘omnibus’ is false”.  He explained on a more serious note that no case could be won without relying on manufactured evidence. Thanks to legal requirements and the judicial temperament, the easiest way of getting a favourable judgment is by producing witnesses. As many local jokes testify, witnesses can be bought wholesale in the Indian market.

Another flaw that bears attention is the reluctance, often refusal, of many lawyers (like doctors) to accept payment in anything but cash. “We can’t afford to take cheques,” an advocate told me, citing income tax rates in justification. No wonder even parking attendants outside Calcutta High Court charge a premium on the authorised fee. They know the truth of the old saying that under the lamp is the greatest darkness.

Western opinion still sees India as the showpiece of the Afro-Asian world, a parliamentary democracy guided by the rule of law and British codes of rectitude. The main drawback, they say, is an obsession with politics. That fits into the Western appraisal of Justice Bhandari’s re-election to the ICJ bench. Without in any way denigrating the Indian judge, they feel the candidate suitability didn’t play much part in the election.

What determined the outcome was the internal politics of the United Nations and the growing impatience of General Assembly members with what is seen as the vice-like grip on power of the P5 — the five permanent members of the Security Council — throughout the UN’s seven decades of existence. Britain, one of the original P5, paid for that perception when six rounds of voting ended in a deadlock and it became clear that Sir Christopher would not be re-elected.

It was a humiliating retreat for a country that had enjoyed a proud position on the 15-judge bench in the Hague ever since the UN’s principal legal body was set up in 1946. A successful candidate needs to gain a majority of votes in both the Security Council and the General Assembly. Sir Christopher was backed by the former. His Indian rival was chosen by the latter. 

The ICJ election is one of the few ways in which the full UN membership has an opportunity of expressing dissatisfaction with P5 dominance. What the November 20 result made clear was that dissatisfaction and frustration run deep. Inevitably, India exploited that grievance with diligent canvassing in favour of its candidate.

The demand for reform of the UN, reducing the authority vested in the Security Council and transferring more power to General Assembly members, may gather strength now. Ever since 1960, the UN Year of Decolonisation, Washington, has dismissed the UN “as an inconsequential talk shop, the more so because the talk is usually directed against the United States”. Two-thirds of members represented “new or underdeveloped (read Afro-Asian) nations” and used the UN “blatantly to promote their interests which often conflicted with those of the US or its allies”. Daniel Patrick Moynihan called the UN the “theatre of the absurd”. Gerald Ford warned of the “tyranny of the majority”.

The US ensured that the pro-West Sir Muhammad Zafarullah Khan became an ICJ judge because as an Ahmadiyya he had no political future in Pakistan. The US also ensured Radhabinod Pal was not elected after his dissenting verdict at the Tokyo war crimes trial. In preferring Justice Bhandari to Sir Christopher Greenwood, the UN merely continued that political tradition.

Will India, the principal beneficiary, now think of cleansing its justice system to narrow the gap between domestic reality and international reputation?