Abstract
This monograph argues that the Indian judiciary, despite a promise of justice, functions as a colonial relic that primarily serves the state rather than its citizens. The pervasive problems of judicial pendency (over 50 million pending cases), high costs, and a culture of intimidation are not mere cracks in the system but are, in fact, a feature of its original design. Tracing the judiciary’s origins as a tool for British imperial control, the paper contends that recent legal reforms, such as the Bharatiya Nyaya Sanhita (BNS), are superficial changes that fail to dismantle this deep-seated “master-servant” mindset.
To fundamentally reconstruct the system, the monograph proposes a comprehensive blueprint built on five pillars:
- Randomized Benches to ensure impartiality and end “judge-shopping”.
- Merit-Based Peer Nomination to create a transparent, weighted voting system for judicial appointments.
- Randomized Parliamentary Panels to diffuse political influence in the confirmation process.
- Fixed Terms and Integrity for Life to end long-term entrenchment and ensure judicial independence.
- A New Ecosystem of Accountability and Transparency, including a tiered system of punishments for judicial misconduct and the establishment of a “Citizen Oversight Authority”.
The monograph concludes that true decolonization and reform require more than a name change for old laws; it demands a transformation from a judiciary that rules over its people to one that truly serves its citizens, fulfilling the Constitution’s promise of “We, the People”.
Prelude: A Promise of Justice, A Reality of Despair
For the common citizen of India, the path to justice is not a clear road but a treacherous maze. It is a journey defined by the wearying refrain of “tarikh pe tarikh” (date after date), where years turn into decades, and the pursuit of a rightful claim becomes a punishment in itself. For example, a farmer losing his land dispute due to a lack of funds, or a family waiting decades for a resolution to a property case. The courthouse, meant to be a sanctuary of fairness, often feels like an alien fortress, its language impenetrable, its procedures baffling, and its gates guarded by costs that push justice beyond the reach of millions.
This is not a system that serves; it is a system that exhausts. With over 50 million cases pending in Indian courts, the promise of a speedy trial has become a distant dream, replaced by a grim reality of financial ruin and procedural injustice. Citizens dread entering a police station, where a simple act of filing a complaint can involve intimidation or demands for informal payments. The very institutions designed to protect the people are often perceived as tools of authority, not service.
Recently, on July 1, 2024, India replaced its colonial-era legal codes with new laws like the Bharatiya Nyaya Sanhita (BNS). This was presented as a historic break from the past, a moment of legal decolonization. But for the citizen on the ground, the chains feel the same, even if their names have changed. The new laws have been criticized as a superficial reform, retaining the substance of the old codes and failing to dismantle the core colonial mindset that prioritizes state control over citizen service. The system continues to treat its people not as the masters of a sovereign republic, but as subjects begging for accountability and dignity.
If we are to ever build a judiciary that truly serves its people, we cannot be satisfied with merely renaming old laws. We must first understand the DNA of the current system. We must journey back to its origins as a tool of colonial rule, dissect its towering and often intimidating structures, and honestly assess its operational mandate. Only by understanding how the system was built and why it fails can we begin the vital work of reimagining it. This monograph is that essential first step.
Part I: Understanding Your Judiciary Today: A System of Pyramids
To understand the challenges within our justice system, we must first understand its structure. India has a single, integrated judicial system. This means that all courts in the country are part of one unified structure, not separate systems for the central government and state governments. The power flows from the top down, and the decisions of higher courts are binding on all courts below them.
The simplest way to picture this structure is as a pyramid. At the very top is one court, in the middle are a few, and at the bottom are thousands of courts where the common citizen’s journey with the law usually begins.
The Supreme Court of India: The Peak of the Pyramid
Located in New Delhi, the Supreme Court is the country’s highest judicial authority and the final court of appeal.
The Final Word: If you are not satisfied with a decision from a High Court, the Supreme Court is your last stop for justice. Its decision is the final law of the land, and every other court and all government bodies must follow it.
Guardian of the Constitution: The Supreme Court’s most important job is to interpret and protect the Constitution of India. It has the power of judicial review to strike down any law or government action if it violates the Constitution.
Protector of Your Rights: It is the ultimate protector of your Fundamental Rights. Any citizen can directly approach the Supreme Court if they feel their fundamental rights have been violated by the state.
The High Courts: The Middle Layer
Below the Supreme Court, each state and union territory has a High Court, which is the highest judicial authority in that region. There are 25 High Courts across India.
State’s Highest Court: A High Court supervises the functioning of all the subordinate courts below it.
Appeals from Lower Courts: Most of its work involves hearing appeals against the judgments of the district courts.
Protecting Rights with “Writs”: Like the Supreme Court, High Courts have the power to issue special orders, known as “writs,” to protect the fundamental rights of citizens. These orders can direct a government official or body to perform an action or to stop doing something illegal.
The Subordinate Courts: The Base of the Pyramid
At the broad base of the pyramid are the thousands of subordinate courts spread across every district in India. This is the foundation of the judiciary and the first point of contact for most citizens seeking justice. These courts are broadly divided into two categories:
Civil Courts: These courts deal with disputes of a civil nature between individuals or organizations, such as property, contracts, and family issues. The highest civil court in a district is the District Judge’s Court.
Criminal Courts: These courts handle cases involving crimes and offenses against society. The highest criminal court in a district is the Sessions Court.
Specialized Tribunals: Special Courts for Special Cases
To reduce the burden on regular courts and provide speedier justice for specific types of disputes, the government has set up various tribunals. These bodies are quasi-judicial and deal with specific fields, such as tax disputes, environmental issues, and consumer complaints.
Part II: The Cracks in the Pillar: Why the System Fails the Common Citizen
The judicial pyramid we have mapped out is, in theory, a majestic structure designed to uphold justice. In reality, however, for millions of Indians, it is a crumbling edifice, its pillars cracked and its foundation shaken. The promise of “equal justice under law” rings hollow when confronted with the daily ordeal of navigating the system. This section moves beyond the structure to the lived experience of the common citizen, exploring the deep-seated failures that have turned the pursuit of justice into a form of punishment itself.
The Endless Wait: “Tarikh pe Tarikh”
The most visible and soul-crushing failure of the Indian judicial system is the immense delay. The phrase “tarikh pe tarikh” (date after date), popularized by a Bollywood film, is not fiction; it is the agonizing reality for litigants across the country.
A Mountain of Pendency: National pendency is ~53.4 million cases (Sep 2025), with ~47 million in district courts. Supreme Court pendency fluctuates around ~88,000 matters. This staggering number means that civil cases can drag on for generations, and criminal cases leave undertrial prisoners languishing in jail for years.
Justice Denied: This delay is not merely an inconvenience; it is a fundamental denial of justice. Witnesses die, evidence is lost, and the financial and emotional toll on a family can be devastating.
The High Cost of Justice: A Luxury Good
For a vast majority of Indians, the doors to the courthouse are effectively barred by a wall of prohibitive costs. Justice in India is not a right; it has become a luxury good, available only to those who can afford it. This financial barrier encourages the use of informal or extra-legal dispute resolution mechanisms, such as local forums or even criminal elements. This underscores how the system’s failures push citizens outside the rule of law.
Beyond Court Fees: The real expense lies in hiring a competent lawyer. The fees for legal representation, drafting documents, and appearing at countless hearings accumulate rapidly.
The Hidden Costs: There are also the hidden costs: lost wages, travel expenses, and the “informal payments” often required to get a file moved. For a daily wage earner, this financial burden makes fighting a legal battle an impossible choice.
A System Lost in Translation: Complexity and Language
The Indian judicial system operates in a manner that is alienating and intimidating to the very people it is supposed to serve. Its procedures are complex, and its language is a barrier.
The Language Barrier: The higher courts, and often lower courts, primarily function in English. Legal documents are drafted in dense, technical jargon that is incomprehensible to most citizens.
Intimidating Environment: The formal and often rigid atmosphere of a courtroom can be deeply intimidating, fostering a sense of powerlessness rather than participation.
The Shadow of Corruption and Influence
Perhaps the most corrosive crack in the pillar of justice is the erosion of public trust due to corruption and the perception that the system is rigged in favor of the powerful.
The Weight of Wealth and Power: It is a common perception that wealth and influence, not truth or fairness, often determine the outcome of a case.
Everyday Corruption: The citizens’ dread of entering a police station is a testament to the system’s deep rot. The police, meant to protect and serve, have in many cases become symbols of tyranny and corruption. Reports of police torture, custodial deaths, and extortion are alarmingly common.
Part III: The Ghost of the Past: Our Colonial Legal Inheritance
Why do the cracks in our judicial pillar run so deep? The answer lies in our history. The Indian judicial system is not broken; it is functioning as it was designed. The tragedy is that it was designed by a foreign power for a purpose that conflicts with the needs of a free India.
An Operating System for a Different Empire
Think of our legal framework as a computer’s operating system. The hardware–our nation and people–is modern, but the core software is obsolete. It is a colonial operating system designed for control and exploitation.
Designed for Control, Not Justice: The Indian Penal Code (IPC), enacted in 1860, was not built to serve Indians–it was built to control them. The police force created under the 1861 Police Act was a tool to suppress resistance and enforce imperial rule. The system was built to instill fear, and this DNA persists today.
The Architecture of Control: A Step-by-Step Colonial Construction
The very structure of our courts is a direct colonial hand-me-down, built piece by piece to serve the Empire.
The First Brick (1773): The British laid the foundation with the Regulating Act of 1773, establishing the first Supreme Court in Calcutta in 1774.
Systematic Expansion (1800s): This model was methodically expanded, with similar Supreme Courts established in Madras (1801) and Bombay (1823).
Creating the Middle Layer (1861): The Indian High Court Act of 1861 abolished these early Supreme Courts and replaced them with High Courts, creating the very “middle layer” of the pyramid we see today.
The Final Blueprint (1935): The Government of India Act of 1935 created the Federal Court of India, which established in 1937, a powerful body with jurisdiction over the High Courts.
The Handover: A New Name for an Old Building
After Independence (transfer of power), this entire, ready-made structure was simply adopted by the new republic. On January 28, 1950, the existing Federal Court was simply inaugurated as the Supreme Court of India. This was a direct continuation, not a new beginning.
New Laws, Same Chains
In my previous article, “A New Law, but the Same Chains: the Colonial Mindset of India’s Legal System Persists,” I demonstrated that if the very structure of the courts is a colonial inheritance, it is no surprise that recent legal reforms like the BNS have also failed to change the colonial mindset. Despite a reduction in sections, around 70% of the old IPC survives in substance. The master-servant model of governance, where the citizen serves the system rather than the system serving the citizen, remains deeply embedded.
Part IV: A New Blueprint for Justice: Reimagining the Indian Judiciary
Understanding the colonial roots of our system’s failures is the necessary starting point for a radical and comprehensive overhaul. We must have the courage to reimagine its very foundations, shifting its core logic from ruling subjects to serving citizens. This blueprint offers a vision built upon five foundational pillars.
Pillar 1: Randomized Benches – To Ensure True Impartiality
To combat the reality and perception of “judge-shopping” and ideological predictability, we must make it impossible to know in advance which judges will hear a case. This requires a fundamental restructuring of how the Supreme Court is composed and how its benches are formed.
Expansion of the Supreme Court: The total strength of the Supreme Court of India should be increased from the current 34 to 45 justices. The mandatory retirement age for these justices should be raised from 65 to 72 years.
Randomized Panel Selection: For each case accepted for review, a bench of either 7 or 9 justices would be selected randomly, lottery-style, from the full pool of 45.
Application to Lower Courts: All High Courts and District Courts must adopt a similar blind and randomized system for assigning cases to judges.
Rationale for Expansion and Age Adjustment
This expansion is not arbitrary. A larger court of 45 justices significantly increases the mathematical combinations for benches, making panel composition truly unpredictable. It also increases the court’s overall capacity to hear more cases, potentially reducing the massive backlog. Raising the retirement age to 72 allows the nation to retain the wisdom and experience of seasoned jurists for a longer period, aligning it more closely with global standards for high courts.
Ensuring True Randomness and Transparency
To make this system robust and trustworthy, two additional clauses are essential:
- Publicly Auditable Algorithm: The random selection process must be managed by a transparent, publicly auditable algorithm, not by an internal administrative process. The source code for the algorithm should be open for public inspection to ensure there are no backdoors or biases. The random draw for each case should be a public event, time-stamped, and recorded.
- Post-Admission Selection: The random selection of the bench must occur only after the Supreme Court has decided to hear a case (i.e., after a petition has been admitted). This prevents any possibility of litigants or lawyers trying to game the system by filing cases at a time when they believe a more favorable random draw might occur.
Outcome: These reforms combined would create a judiciary where decisions are seen as the result of legal arguments before a neutral panel, not the predetermined outcome of a bench’s fixed composition. It would sever the link between the litigant and the judge, enhancing the perception and reality of impartiality and restoring faith in the court as an institution.
Pillar 2: Merit-Based Peer Nomination – To Elevate Expertise over Politics
The current Collegium system is opaque and must be replaced with a transparent, merit-based process.
Weighted Voting System: Judicial nominations would arise from an internal voting system involving experienced judges. The President’s role in the nomination stage would be removed. Votes would be weighted to reflect experience:
- Sitting Supreme Court Justices: 5 points
- High Court Judges: 3-4 points
- Senior District Judges: 1 point
Outcome: This places the selection of judges in the hands of the judiciary itself, but broadly and transparently, prioritizing peer-recognized competence. This merit-based system would then be complemented by Pillar 3, which diffuses political influence in the confirmation process.
Pillar 3: Randomized Parliamentary Panels – To Diffuse Political Influence
Parliament’s constitutional oversight role must be preserved but reformed to reduce hyper-partisanship.
Randomized Committee: For each nominee, a confirmation panel of one-third of sitting MPs would be randomly selected from both the Lok Sabha and Rajya Sabha.
Outcome: This would prevent coordinated party-line confirmations or blocks, shifting the focus of hearings back toward the nominee’s qualifications.
Pillar 4: Fixed Terms and Integrity for Life – Ending Entrenchment and Ensuring Accountability
The current system of service until a fixed retirement age leads to long-term entrenchment. It must be replaced with a system of fixed terms and robust safeguards.
Fixed 12-Year Term: All High Court and Supreme Court justices will serve a single, non-renewable 12-year term. Their tenure will end after 12 years or upon reaching the age of 72, whichever comes first.
Mandatory Cooling-Off Period: Upon retiring, all Supreme Court and High Court judges will be barred from accepting any government-appointed position for five years to eliminate any perception of a quid pro quo.
Mandatory Health and Cognitive Assessments: Beginning at age 65, all sitting judges must undergo confidential, regular health and cognitive assessments to ensure they possess the acuity necessary for their roles.
Outcome: These reforms ensure a regular infusion of new perspectives while protecting the judiciary’s integrity from executive influence.
Pillar 5: A New Ecosystem of Accountability and Transparency
The judiciary is often seen as an opaque “old boys’ club” with no accountability. To place the citizen at its center, we need a new ecosystem of robust accountability. This must include a system of clear, proportional, and severe punishments to deter misconduct and restore public trust.
The Reform:
Judicial Oversight Council of India (JOCI): Create a powerful, independent body, made of retired judges, ethicists, law professors, and respected citizens. It will investigate ethical complaints against all judges, including those of the Supreme Court.
Public Disclosure: All judges must publicly disclose their financial assets and business interests annually.
Recusal Registry: A public database will list every time a judge recuses themselves from a case, with a mandatory written reason.
Mandatory Continuing Education: Every judge must complete regular training on new areas of law, technology (like AI and cybersecurity), and implicit bias.
Plain-Language Summaries: Every judgment from the High Courts and Supreme Court must be accompanied by a clear, simple summary in English and the local state language, making the law accessible to everyone.
Outcome: This pillar throws open the doors of the judiciary, replacing opacity with transparency and impunity with accountability, which is essential for rebuilding trust.
Investigation: The JOCI will be the sole independent body to receive and conduct thorough investigations into all allegations of misconduct, from ethical lapses to corruption, against any judge, including those of the Supreme Court.
To ensure that judicial accountability is swift, fair, and free from political interference, the Judicial Oversight Council of India (JOCI) will be empowered not just to investigate but also to adjudicate complaints and render appropriate and tiered sanctions and/or punishment. These sanctions and punishments would include:
- Confidential admonishment
- Public reprimand
- Temporary suspension from judicial duties
- Monetary fines
- Forfeiture of Benefits
- Recovery of Ill-Gotten Gains
- Lifetime Ban from Government Positions
- Removal from Office
The following tiered system of sanctions or punishments is proposed:
Tier 1: For Proved Corruption and Gross Misconduct
This tier is for the most egregious offenses, such as bribery, misuse of judicial power for personal gain, and the accumulation of disproportionate assets. For these, the punishment must be absolute and uncompromising. The JOCI will issue a formal and public recommendation for the judge’s removal from office.
Removal from Office: A judge found guilty of corruption or gross misconduct must be immediately and involuntarily removed from their judicial position.
The Judicial Tribunal for Removal: The JOCI’s recommendation for removal will not be sent to Parliament for a political impeachment process. Instead, it will be sent to a special Judicial Tribunal convened within the Supreme Court.
Composition: This tribunal will consist of a panel of 5 senior-most justices from the full pool of 45, selected randomly (excluding any justice who may have a conflict of interest), 3 retired judges, and 3 law professors.
Function: The Tribunal will conduct a formal, trial-like hearing to review the JOCI’s evidence, hear the case, and allow the accused judge a full opportunity to present a defense.
Final Decision: A binding decision to remove the judge from office will require a supermajority vote (e.g., 7 out of 11) from the Judicial Tribunal. This decision will be final.
Rationale: This reformed process removes the final decision on judicial integrity from the hands of political actors and places it within a quasi-judicial framework. It ensures that a judge is judged by a panel of their peers based on evidence and legal standards, not political expediency. This creates a credible and effective deterrent against corruption and misconduct, which is essential for rebuilding public trust.
Forfeiture of Benefits: All benefits, including pension and post-retirement perks like housing or staff, should be forfeited. This removes the financial incentive for corruption.
Criminal Prosecution: The JOCI shall refer cases of proven misconduct for criminal prosecution. The judge should be subject to a criminal trial as a common citizen.
Recovery of Ill-Gotten Gains: A thorough financial investigation must be conducted to identify all assets and benefits acquired through corrupt means. These assets should be seized and forfeited to the state.
Lifetime Ban from Government Positions: A judge removed for corruption must be permanently barred from holding any government or public-facing position, including appointments to tribunals or commissions, to eliminate the possibility of a quid pro quo.
Tier 2: For Lesser but Serious Misconduct
This tier addresses actions that undermine the integrity of the judiciary but do not rise to the level of criminal corruption, such as a serious conflict of interest or a pattern of biased rulings.
Compulsory Retirement: The JOCI could recommend compulsory retirement, stripping the judge of their position while potentially allowing for a reduced pension based on the severity of the offense.
Public Censure: A formal, public statement from the JOCI could condemn the judge’s actions, serving as a powerful reputational deterrent.
Tier 3: For Minor Misconduct
This tier is for minor ethical lapses or procedural violations that do not severely impact the integrity of the judiciary.
Private Censure: A formal, but private, reprimand would be recorded for future reference.
Withholding of Promotions or Assignments: The judge could be temporarily or permanently overlooked for promotions or prestigious assignments.
Change in Jurisdiction: The judge could be transferred to a less sensitive or demanding judicial post.
Mandatory Training/Counseling: A judge could be required to undergo mandatory training on judicial ethics and conduct.
Additional Points for Pillar 5
A Fourth Branch of Government: Citizen Oversight Authority: Establish an independent constitutional body–a “Police of Police” (POP) or Civil Oversight Commission–with the power to investigate misconduct by police, prosecutors, and other public officials. This body must be insulated from political interference and have its own authority to conduct audits and investigations.
A Mandatory Citizen Rights Charter: Every police station must be legally bound to display a “Citizen’s Charter of Legal Rights” and inform citizens of their rights at every point of contact.
Time-bound Justice: The new laws must include strict, statutory deadlines for each stage of the legal process. Cases delayed beyond these deadlines must trigger an automatic review and guaranteed state compensation.
Universal Legal Aid and Compensation: India must create a universal portal for legal aid and guarantee state compensation for wrongful arrest and custodial abuse.
Civic Re-education of Law Enforcement: Mandatory yearly training on constitutional duties and citizen dignity must be implemented for all officers.
From Subjects to Citizens—A New Republic of Justice
We began this journey by confronting a painful truth: a judicial system that, for the common citizen, often feels like an instrument of exhaustion rather than a pillar of justice. We dissected its structure, witnessed its failures, and traced the DNA of this dysfunction back to its source: a colonial architecture of control, an operating system designed not for service but for subjugation. We saw how this inherited mindset persists, rendering even modern reforms superficial.
From this unflinching diagnosis, we have laid out a comprehensive blueprint for a new judiciary. This is not a proposal for minor repairs but for a fundamental reconstruction, built on the pillars of Randomized Benches, Merit-Based Peer Nomination, Randomized Parliamentary Panels, Fixed Terms and Integrity for Life, and a new Ecosystem of Accountability and Transparency. It is a vision to transform our courts from intimidating fortresses into open sanctuaries of justice.
The choice before us is clear. We can continue to apply cosmetic changes to a colonial relic, forever trapped by the logic of our former masters, or we can have the courage to build a system worthy of a free republic. This is the difference between a system that treats people as subjects and one that empowers them as citizens; between a culture of fear and a culture of service; between justice as a privilege for the few and justice as an undeniable right for all.
This monumental task does not belong to judges and politicians alone. It belongs to the people of India. The Preamble of our Constitution begins with the words “We, the People.” It is a declaration of mastery, not servitude. Reclaiming our judiciary and demanding that it serves its true masters–the citizens–is the unfinished business of our independence. Let us begin the work of building a system where the rule of law is finally, and truly, the rule of the people.
References
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