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:

1. Randomised Benches to ensure impartiality and end "judge-shopping".
2. Merit-Based Peer Nomination to create a transparent, weighted voting system for judicial appointments.
3. Randomised Parliamentary Panels to diffuse political influence in the confirmation process.
4. Fixed Terms and Integrity for Life to end long-term entrenchment and ensure judicial independence.
5. 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 decolonisation 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 decolonisation.  But for the citizen on the ground, the chains feel the same, even if their names have changed.  The new laws have been criticised as a superficial reform, retaining the substance of the old codes and failing to dismantle the core colonial mindset that prioritises 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 organisations, 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 offences against society.  The highest criminal court in a district is the Sessions Court.

Specialised 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), popularised by a Bollywood film, is not fiction; it is the agonising 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 favour 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 instil 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 was 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.