MARIAN PINHEIRO
Justice is an elusive, highly elas tic, deeply subjective, concept prone to shifting definition. This inherent elasticity is not, by itself, a structural flaw; legal sys tems require a degree of flexibili ty to adapt to the complexities of human life. However, when elasticity de volves into unpredictability, the rule of law is replaced by the rule of chance. In India, the uncertainties creeping into the judicial process have reached a scale that is deeply unsettling to the ordinary citizen. I. The Why The “Why” of a judiciary is to resolve disputes by applying es tablished legal rules to specific facts? If so, modern Artificial In telligence systems could easily re place human judges. An algorithm can digest millions of pages of statutes, scan precedents in mil liseconds, and produce logically consistent outcomes far more effi ciently than any human mind.
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But Justice operates not on in ert matter, but on the messy, vol atile, and highly subjective terrain of human behaviour. The “facts” presented in a courtroom are not pure data, they are narratives re constructed by fallible human witnesses, framed by partisan advocates, and interpreted by hu man judges. At the apex of this structure stands the Constitution of India, a living, organic document it en shrines transformative values: liberty, equality, fraternity, and so cial justice. Translating these lofty principles into concrete decisions is an arduous, highly intellectual endeavour. Yet, this transformative doc ument has been interpreted, reinterpreted, and sometimes misinterpreted to the point of exhaustion.
Instead of providing a stable anchor, constitutional interpretation in India has occa sionally resembled a battleground of subjective preferences, leaving citizens to wonder whether the “Why” of the judiciary is to guard fundamental rights or to accom modate the shifting priorities of those in power. II. The How The “How” of Indian justice is where systemic inefficiencies meet psychological realities, cre ating a climate of profound uncer tainty? 1. The Backlog India’s judicial delay is legend ary. With over 50 million cases pending across various levels of the judiciary, “justice delayed is justice denied” is a systemic fail ure. Successive Chief Justices of India have expressed public anguish over the backlogs, and retired without implementing lasting structural reforms. This pattern points toward a “caged mind-set.” The subtle impact of post-retirement anxieties, ap pointments, commissions, or political nominations silently compromises their concerns. The anxiety to preserve future pros pects can result in a cautious, status-quo approach that shuns radical reform. 2. The “Subconscious Ele ment” in the Indian context Justice Benjamin Cardozo’s in The Nature of the Judicial Process (1921). In Chapter IV, brilliantly identifies the unspoken forces at play: “There is in each of us a stream of tendency, whether you choose to call it philosophy or not, which gives coherence and direction to thought and action… All more or less subconsciously, help to shape the form and content of our judg ments…” Cardozo’s thesis is that judg es do not operate in a vacuum. Their judgments are inevitably moulded by forces beneath their conscious awareness: inherited prejudices, class biases, religious upbringings, regional identities and professional associations. In India, these subconscious el ements are highly pronounced. A judge’s social background, their ideological leanings, and their ex posure to different strata of socie ty profoundly influence how they view “facts.” These forces operate beneath conscious thought, judg es honestly believe they are being entirely objective, even as they arrive at diametrically opposed conclusions on identical legal principles.
Perhaps the most potent sub conscious force acting on the con temporary Indian judiciary is the prevailing political climate. Judg es are acute observers of power. When a political executive is pow erful, centralised, and popular, it creates an atmospheric pressure that subtly reshapes judicial deci sion-making. The subconscious mind of a judge seeks to avoid direct, dest abilising conflict with a powerful executive. This does not necessar ily manifest as overt corruption or bias; rather, it appears as a creep ing “judicial deference.” The court becomes more willing to accept the state’s justifications of “na tional security” or “development” at face value, leading to a visible reluctance to hold the executive accountable in sensitive matters. The combination of institution al inertia and subconscious bias manifests in stark, visible anoma lies that shake public confidence. 1. Bail and Liberty The Supreme Court of India has repeatedly declared that “bail is the rule, jail is the exception.” Yet, in practice, the application of this rule is wildly inconsistent. Consider how the system han dles political dissidents, journal ists, and activists arrested under stringent laws like the Unlawful Activities Prevention Act (UAPA) or Prevention of Money Laun dering Act (PMLA). Some judges strictly analyse the statutory re strictions and deny bail for years without trial, citing the gravity of the allegations. Meanwhile, other benches, applying the same law to similarly situated individuals, invoke the fundamental right to a speedy trial under Article 21 and grant bail. This extreme variance means that a citizen’s freedom de pends heavily on the “luck of the draw”—specifically, which judge’s bench they are listed before and what subconscious values that judge holds regarding state pow er versus individual liberty.
When justice begins to look like a lottery, the moral authority of the law crumbles. 2. Disparities in serious of fences The wide variations in judi cial responses to heinous crimes like rape and murder are equally shocking to the public conscious ness. In some cases, courts show remarkable sensitivity, imposing stringent penalties and fast-track ing procedures. In others, judges make controversial, highly sub jective remarks—such as ques tioning the victim’s conduct or suggesting mediation between a rapist and a victim. These “twists and turns” are not logical applications of legal doctrine. They are direct man ifestations of the judges’ sub conscious patriarchies, cultural conditioning, or outdated social values overriding clear statutory mandates. 3. Physical and verbal ero sion inside the courtroom The crisis of confidence is no longer confined to academic cri tiques; it has spilled over into physical and verbal volatility within the courtrooms them selves. The increasing frequency of ad vocates attempting physical dis ruptions highlights a dangerous decline in courtroom decorum. These outbursts, combined with judges making anxious, defensive, or highly political utterances from the bench, reveal an institution under immense psychological strain. When the theatre of justice degenerates into a spectacle of shouting matches and public re criminations, it signals that the public and the bar have begun to lose their sacred respect for the judicial process. IV. The What The “What” of justice is the ac tual output of this complex ma chine, the lived experience of the Indian citizen? Today, that output is deeply fragmented.
The reality is selective en forcement: high-profile cases get immediate hearings while thou sands of habeas corpus pleas remain pending. PILs are occa sionally misused for publicity or political score-settling, adding to the judicial backlog. High-profile litigants with elite lawyers secure swift, late-night hearings, while ordinary citizens wait years for basic listings. On one hand, the Indian judi ciary has authored some of the most progressive jurisprudence in the democratic world. It has read the right to privacy into the right to life, decriminalised con sensual same-sex relationships, and actively intervened to protect the environment. On the other hand, this stellar record is constantly undermined by selective silence. When the state carries out controversial actions— such as demolitions of properties without due process or prolonged internet shutdowns—the courts have occasionally adopted a poli cy of avoidance, delaying hearings until the issues become virtually redundant.
The “What” of Indian justice is therefore a dual reality: An insti tution capable of soaring constitu tional imagination, yet frequently hobbled by systemic inconsistency, institutional self-preservation, and an inability to deliver timely, uni form relief to the common citizen. Ultimately, the Judges need to understand that their “subcon scious elements” in the judicial process is weakening the basic pillars of the Indian democracy (The writer is a Professor of law & an education consultant)
