Time for an Indian Magna Carta

Female fire Female fire: Protestors holding placards march in Delhi seeking justice and security for women. The 2012 gang rape of a physiotherapy intern in Delhi saw huge protests countrywide | Reuters
  • In 2009, Manmohan Singh declared that India had the largest backlog of cases in the world. a Delhi high court chief justice estimated that it would take him 466 years to clear his court’s backlog alone.

Dr Satvinder Juss

One claim increasingly voiced during the 800th anniversary celebrations of Magna Carta is that it is England’s greatest export. Back in 1215, that claim would have surprised no one more than King John and his enemies. How a socially divided and divisive document, reflecting the elitist interests of a few hundred strong barons, lording it over several million unrepresented subjects, acquired such iconic status is something that must remain a matter of some marvel. Maybe the ‘celebrationists’ in England have another document in mind.

Author Ferdinand Mount has recently observed in a publication no less august than the London Review of Books that the secret of this document is that, “Magna Carta did live on,... but only by being misunderstood and romanticised. It is the myth rather than the actual text that can be said to be the foundation of liberty and the rule of law in the English-speaking world.”

Myth it certainly is. Why else would a republican arch anti-royalist in the form of Oliver Cromwell have contemptuously referred to it as “Magna Farta”? That surely is as much revealing of what Magna Carta stood for, both in its own times and in the epochs that followed it, than any other statement. After all, there was nothing new in the ideas behind the Great Charter. Roman and Canon law already enshrined its essential precepts. They were of general European heritage. They were found in the laws and constitutions of Spain, Hungary, and of the south of France.

Only in England, however, did they radically curb the powers of the ruler. It was this that was certainly unique. Though F.W. Maitland wrote that “the Charter contains little that is absolutely new” and that “it is restorative,” it did mark out a new relationship between the king and his subjects. This may have been only symbolic. But, in life the symbolism of ideas matters. Events sometimes matter far less.

And, so has it come to pass that the ideas―of due process of law, of no one being above the law, of justice delayed is justice denied, of no taxation without representation and that the Church shall be free―have all rung resoundingly through the chronicles of time.


From 1351, when ‘no free man’ was interpreted in legislation to mean ‘no man of whatever condition’, to 700-years later when lawyers in London are planning today to challenge the Lord Chancellor’s imposition of new court fees on grounds that he is thinking of doing nothing less than selling justice (prohibited under Clause 40), the Magna Carta has refused to slink away quietly and die an ignoble death.

One is bound to ask therefore whether Magna Carta has lessons for India. If so, what would these lessons be? How can it speak to the condition of modern India? An India hurtling mercilessly towards modernity. And, an India of multifarious sensibility. Here, excessive affluence sits side by side with desperate hardships. Its cultivated, well-schooled and ambitious middle class of no less than 300 million (the entire population of western Europe) jostles unhappily with its uneducated, benighted, solecistic poor locked unforgivingly and without escape in a downward spiral of unending hopelessness.

An India, where the foreign visitor is all too often struck by huge paradoxes. Witness the benevolence, gentleness and amiability of its people alongside the staggering inhumanity, savagery and heartlessness of its communities. Behold the complex family kinship networks that nurture and protect, but which manage to co-exist with a brutal patriarchy. And, in recent years, the same visitor would be baffled by how the effervescence of composite, multicultural and global cultural arts stands threatened by a swelling and unabated religious bigotry and fanaticism.

Why these facts matter is clear from a much neglected, hefty United Nations report. This report deserves to be better known and not least in India itself. In State of the Urban Youth, India 2012: Employment, Livelihoods, Skills (2013, IRIS Knowledge Foundation, Mumbai), this 157-page document recently warned of how “[i]n every sphere―education, work and play―there is a mix of disenchantment, resentment and hope. With growth has not come equity. The cost of urbanisation is beginning to tell in a way that if left unattended could plunge society into fragments.” To give a measure of the problem there are 433 million people aged between 15 and 34 living in Indian towns and cities and that is an army bigger than the combined populations of the US, the UK and Canada.

According to noted writer Aditya Chakrabortty, “urban India is breeding a generation of angry young men and women.” Accordingly, when a female undergraduate student was sexually molested by a group of males at Jadavpur University, the cack-handed approach of the authorities resulted in central Kolkata being shut down as incandescent students numbering from 30,000 to 1,00,000 poured in from across the region. Other cities across India soon saw marches and protests to match. When female students at the Aligarh Muslim University in Uttar Pradesh were denied access to the main library successful protests took place there also.

Such protests, and others like it, are not especially radical. What young Indians are doing, as Chakrabortty has explained, is to point out the failures of the authorities, whether that be to investigate an assault or to provide equal library access for women. The gang rape of a 23-year-old female physiotherapy intern in Delhi in 2012 is a gruesome reminder of the wanton cruelty of society that is now commonplace. Uniquely, it is also a case where justice was meted out swiftly. Within nine months, all four of the remaining adult culprits had been tried, found guilty and sentenced. That must have come as quite a shock to some.

Justice, by definition, has to be slow for some reactionaries, unused to and fearful of change. But, if there is one area where Magna Carta speaks powerfully to India it is in the realm of the chronic backlog of its court cases. The delays in getting on the road to justice must now be a matter of national embarrassment if those who preside over such grandeur and opulence could be embarrassed. Unless promptly remedied, disputes such as those of student protests, which properly belong for resolution in the courts, will be improperly ventilated in the streets. Mob rule will prevail.

Unsurprisingly, therefore, no less than a former prime minister of India, Manmohan Singh, has indicted the country’s beleaguered legal system. In 2009 he declared that India had the largest backlog of cases in the world. The soft-spoken former premier could not have spoken too loudly. It now appears that there are over 30 million cases pending. There are over four million cases in the High Court alone. Even the Supreme Court, where intricate points of constitutional law of no insignificant moment are argued, has over 65,000 cases outstanding. A Delhi High Court chief justice estimated that it would take him 466 years to clear his court’s backlog alone. Why ‘justice delayed is justice denied’ matters should be painfully obvious from these facts: India’s hapless prison population consists mostly of detainees awaiting trial! No wonder people are angry.

To this may be added the cost of going to justice. In Mumbai, India’s financial hub, the courts have ground down to a standstill with land disputes of Dickensian proportions, where Jarndyce v Jarndyce pales into an insignificant tea-party when poised against what are decades-old disputes that show little sign of moving. This not only hijacks the city’s industrial development, but also makes litigation ever more expensive, as the chronic delays force the wealthy and the well-connected to pursue a ‘justice’ which is far beyond the reach of the ordinary man.

Perhaps it is time for some enterprising young lawyer to resurrect Magna Carta’s Clause 40 again, in the Mumbai courts, as justice sets out to be sold to those who can pay for it. India’s minority and low-caste groups are already not immunized from discrimination. The law is their one hope. Or, maybe not even that now anymore.

One answer is to appoint more judges. India has less than 15 judges per a million inhabitants. That is a parlous state of affairs. Compare this with the US where there are 100 judges per a million. That disparity alone makes it easier to see why ‘justice’ is so altogether more achievable in a country like the US.

Maybe, in India, we pride ourselves in justice being a rare commodity, something beyond the reach of the common man, something clandestine and distant and something that has to be slow and cumbersome in its delivery. Maybe, we are afraid lest it becomes real and actually delivers. Maybe, we think that would denature and devalue justice. If so, then if we succeed, we succeed only in the words of the Nobel laureate Rabindranath Tagore in that we “make silent justice weep furtively.” Maybe, for all its deficiencies, it is time for an Indian Magna Carta after all.
Juss is professor of law at King’s College London and a barrister-at-law of Gray’s Inn, London.

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