Trust Deficit In Judiciary Might Push People To Vigilantism & Mob Justice, Which Will Erode Rule Of Law : Justice BR Gavai

"A trust deficit in the judiciary threatens the very foundation of our institution," emphasized Supreme Court Justice Bhushan Ramkrishna Gavai while addressing a gathering on Saturday (October 19) at the Annual Conference for Judicial Officers in Gujarat on the theme of 'Institutional Perspective-Self Evaluation and Self Evolution'.

Emphasizing that Courts need to continuously nurture public trust, the judge said,"Another theoretical reason why public trust in the judiciary must be kept intact is that a trust deficit might push people to seek justice outside the formal judicial system. This might be through informal ways of vigilantism, corruption, and mob justice. All of this can lead to the erosion of law and order in society. Similarly, it can lead to public hesitation in filing cases and appealing decisions".

Justice Gavai, who is also the chairman of the Supreme Court Legal Services Committee was speaking at the first session of the two day annual conference on the topic–'Trust Deficit - Eroding the Credibility of Judicial Institutions? Ways and Means to Combat the Truth Decay', in the presence of Gujarat high court Chief Justice Sunita Agarwal, high court judges, judicial officers and other dignitaries. The event has been organized by the Gujarat State Legal Services Authority in association with the Gujarat High Court and the Gujarat State Judicial Academy.

In his address Justice Gavai said that judiciary is a crucial institution which maintains the rule of law, acts against the excesses of the State, and protects the citizens from violation of their rights. In a constitutional framework, the judge said, based on the rule of law, the role of judges is to ensure accountability of other institutions as well as in their working. However, the working of the institution is "facilitated by public trust in it", the judge emphasized.

Factors which may lead to public trust deficit in Courts

Justice Gavai pointed to several factors which may contribute to a trust deficit in courts. The first is Corruption, where even a trace of it–either through "bribery, partiality, or undue influence", can undermine the foundation of the legal system, he said.

With respect to delay in proceedings as another possible factor, Justice Gavai said, "As it is said, justice delayed is justice denied. This maxim holds for both the parties involved and for the societyat large. Prolonged litigation and slow-moving court procedures create disenchantment with the legal system".

He further referred to President of India's Droupadi Murmu's address at the recent two-day 'National Conference of the District Judiciary' organised by the Supreme Court of India, and stated that the President had sought to highlight the problem of delays and prolonged judicial process and had even pointed out to the concept of “litigation fatigue”–which makes litigants withdraw their cases due to the fatigue of having to appear in court.

The judge also emphasized that delays can have a detrimental impact on criminal trials, where if an "innocent person is undertrial for a long time and later acquitted, it also creates a social stigma against that person, violating his fundamental right to dignity".

On dilution of separation of powers as another factor leading to erosion of public trust, he said that the "Judiciary must stand independent from legislature and executive" and any encroachment on judicial autonomy whether by political interference, legislative overreach or executive overreach undermines the very concept of impartiality of justice.

On perceived lack of transparency, Justice Gavai said when "judicial decisions are not accompanied by clear reasoning" it can breed skepticism adding that the public has the right to understand not only the outcomes but also the thought process behind the outcomes.

Reflecting on the perception of bias as a contributing factor for trust deficit the judge said, "Public perception sometimes leans toward the belief that judges may have personal biases that influence their rulings, particularly in cases involving sensitive social issues or concerning the rights of marginalized communities. A particularly concerning aspect is when judges make broad statements outside the scope of specific cases, especially regarding sensitive topics such as gender, religion, caste, politics, etc. I wont name the high court or the judge but recently you must have come across a learned judge of a high court who expressed opinions about woman or rather historically marginalised groups while sitting on the bench. Such statements raises questions about their impartiality in cases involving those demographics. The bench of five senior most judges of the Supreme Court had to be assembled for expunging such remarks. Such statements can create impression that the judge holds pre-conceived notions that may influence the judgements leading to widespread beliefs that justice may not be served fairly".

The judge thereafter flagged the issue of misbehaviour by judges and court officials and said that such misbehaviour can manifest in various forms, including "favouritism towards certain litigants, conflicts of interest, or failure to uphold ethical standards" adding that when the public witnesses or hears about such instances it creates a perception that judiciary operates without accountability or oversight.

"In a recent instance a judge in the district judiciary was found misbehaving and shouting at the court staff and litigants was terminated on the ground of misconduct," the judge said.

Justice Gavai thereafter said that unethical practices by judges may also dwindle the public trust in judiciary. Emphasizing that a judges conduct on the bench or off the bench must be in consonance with highest standards of judicial ethics, the judge said, "If a judge praises a politician or a bureaucrat while in office and outside the scope of courtesy it may affect the public trust in the judiciary as a whole. For instance in the USA a judge of the Supreme Court of America had to apologize for their comments criticising a presidential candidate. Another example is that if a judge resigns from his office to immediately contest elections it may affect public perception of their impartiality. In my opinion, a judge's action in the public sphere is essential and should be conformed with propriety".

He then reflected on misreporting, manufactured or fake news as another factor for causing trust deficit and said that advent of social media has brought in greater connectivity however this has also led to a rise in the spreading of fake news and misinformation.

"Sometimes, it is just clickbait journalism that can help the news portal get more hits online. An incident that is a normal judicial exercise is shown out of context and sensationalized or made 'big breaking news'. Sometimes, facts are not reported correctly. I was sitting with the bench with the Hon'ble CJI and the CJI just to relax his back, made a position which looked like he was rising and everywhere that video clip was made viral and shown that the CJI commits a contempt in his own court by rising when the court proceedings are going on," he added.

In the context of judiciary, Justice Gavai said, that if a perception or narrative is being created that a judge is not hearing particular petition or they are trying to delay the judicial process due to bias it may perpetuate a lack of trust in the public domain of the judiciary.

Ways to combat public trust deficit in Judiciary

Among various ways in which trust deficit in the institution can be combatted, Justice Gavai said for instance, in case of corruption, the first step would be to "ensure transparency in the process". He pointed to the introduction of technology in court processes, like 'e-filing and tracking of case status' stating that it has made the judiciary more accessible to the common man but also has helped in curbing any discretionary power that may lead to corruption.

He said that the judiciary has taken steps to ensure that any allegation of corruption is dealt with decisively and pointed to "in-house procedures" being adopted in the High Courts and the Supreme Court to investigate complaints made against judges.

On combating delay the judge suggested practical solutions like the "implementation of a case management system" which can allow courts to track cases in real-time, prioritise urgent matters, and automate administrative tasks, adding this mechanism has been implemented by the dedicated Commercial Courts in Delhi, Bombay, Karnataka and Calcutta. He further emphasized that courts must also focus on implementing strict timelines for various case procedures adding, "We must do away with the culture of adjournments".

While referring to the principle of open justice which is important for gaining and maintaining public trust, Justice Gavai said, "Further, to make it easier for litigants to obtain information on their cases, e-Courts Services has been a fruitful initiative...Enabling video conferencing and live-streaming of constitutional bench proceedings is also a step towards increasing transparency and accessibility. Live streaming allows the public to observe trials and rulings in real-time. This openness fosters trust by providing citizens with a direct view of how justice is administered. However, short clips of court proceedings presented out of context can create wrong perceptions about the judge. We therefore need to develop appropriate guidelines on live streaming of court proceedings, which can curb the misuse of clips being circulated out of context".

He also emphasized on insuring inclusivity for all sects of society as another way of combating trust deficit, adding that the legal actors should uphold the concept of substantive equality for all and should ensure that the decisions taken are free from all the stereotypes and prejudices based on religion, culture, and social constructs.

Speaking on tackling stereotypical treatment of genders and marginalized groups, the judge said, "From time to time, the Supreme Court has released handbooks and modules to sensitize the courts at all levels nation wide. A module titled “Sensitisation Module for the Judiciary on LGBTIQA+” was released by the e-committee of the Supreme Court of India in November 2022. The intent was to highlight and address the discrimination faced by them because of their identities. This initiative provides the judiciary with a list of Do's and Don'ts when it comes to dealing with LGBTIQA+ individuals...Further, the Supreme Court released the “Handbook on Combating Gender Stereotypes” in August 2023 with the aim to assist the judges and the community in identifying and addressing the usage of stereotypical and derogatory terms in judgments against women. The handbook suggests alternatives for these terms. It is the duty of a judge to keep away from preconceived notions while adjudicating upon a case".

With respect to providing the public with accessibility to courts Justice Gavai highlighted that dedicated windows at filing and refiling sections for individuals with disabilities, pregnant women, and senior citizens will enable them to access the court on a more comfortable level. He said that "e-SewaKendra" is one such digital medium, which has played a role in easing the process for not only the lawyers but also the litigants.