US-India Global Review

Markets cannot function without good governance. With almost no exceptions, the delivery of govern- ment services in India is pathetic, from the police and judiciary to education and health. Unsackable government staff members have no accountability to the people they are supposed to serve, and so callousness, corruption, and waste are common. Politicians like a patron-client system in which they earn gratitude by helping constituents and sundry groups through the many controls and permits, rather than abolishing the controls and permits, which would level the playing field but also leave them less powerful. The judicial system is a mess. Justice is supposed to be blind. In India, it is also lame. India holds the world record for legal case backlogs (31.5 million), which will take 320 years to clear, according to Andhra Pradesh high court judge V. V. Rao. India’s Law Commission has recommended the appointment of 50 judges per million population (in the United States, the ratio is much higher at 107 per million). The current sanc- tioned judicial strength is just 17 per million, and unfilled vacancies are as high as 23 percent in the lower courts, 44 percent in high courts, and 19 percent in the Supreme Court. No wonder the staggering backlog of cases does not diminish, and most people are reluctant to litigate to redress their grievances.33 The lower courts are hotbeds of corruption, and recently senior lawyers such as Prashant Bhushan have alleged that even Supreme Court judges are corrupt. Lengthy procedures and con- stant adjournments mean that cases can linger for decades or even more than a century. In the case of the 1975 murder of L. N. Mishra, a prominent politician, 20 different judges took 38 years to reach a verdict, although the case was supposed to be heard on a day-by day basis. Of the 39 wit- nesses called by the defense, 31 died before the case ended. When the accused sought to have the case dismissed saying the long delay had made justice impossi- ble, the court declared that 38 years was by no means too long.34 However, there are two bright spots. First, the judiciary is quick to decide on writ petitions against arbitrary government action, which has proved a great comfort to investors. Second, faced with an incompetent and corrupt adminis- tration that fails to deliver, judicial activism has frequently taken the shape of orders to the govern- ment on executive matters. Purists will object that the judiciary should stay within its area and not inter- fere in the executive branch. But for many Indians, court activism is the only way to get redress from a callous administration.35 The police system is a mess. India has 123 policemen per 100,000 population, almost half the UN recommended level of 220 and far below the levels in the United States (352) and Germany (296). Huge unfilled vacancies are common in all states. In Uttar Pradesh, a state of 200 million people, the overall shortage is 43 percent, with the shortage of head constables being 82 percent and inspectors 73 percent.36 The police are notoriously inefficient and corrupt. In many states, they will not even register complaints without a bribe. N. C. Saxena, who headed the 1962 National Police Commission, once wrote that the police had ceased to regard crime detection and criminal conviction as their key goals. The reason was that the agenda of home ministers in every state was very different. The top priority of home ministers was to use the police to harass politi- cal opponents. The second priority was to use the police and prose- cutors to tone down or dismiss cases against their own parties and coalition members. The third priority was to use police for VIP security. And the last priority was to use police for crime detection — which yielded no political divi- dends and so received the least attention. One consequence of a lousy police force and lousy courts is that virtually no influential person gets convicted beyond all appeals: he or she is likely to die of old age first. The system rewards law- breakers and penalizes law abiders. And that erodes every walk of life from business and poli- tics to education and health. Without better governance, eco- nomic liberalization will not work properly, because the first assumption of all market econom- ics is the existence of rule of law. If not, the quasi-mafia and crony capitalists will rule supreme.37 Politics are criminalized. In India, criminals take part in politics and often become cabinet minis- ters. That gives them huge clout and ensures that charges against them are not pursued. An analysis by the Association for Democratic Reforms looked at 541 of the 543 members of Parliament elected in 2014 and found 186 had criminal cases pending. In the earlier 2009 election, the figure was 158. Of the winners in 2014, 112 have been charged with serious offens- es, such as murder, kidnapping, and crimes against women. Some of those charges may be false but not most. No party is clean — all have criminals aplenty, since 66 US-INDIA GLOBAL REVIEW JANUARY-MARCH 2018

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