IN 1833, WILLIAM BENTINCK’s government admitted that India’s criminal justice reforms had failed to achieve “the twin objects of a court viz., cheap and quick decision of cases.” Nearly two centuries later, Justice S. Muralidhar told an audience gathered for the 28th D.S. Borker Memorial Lecture, the situation remains unchanged.
The 28th D S Borker Memorial Lecture, was delivered on August 24 this year by senior advocate and former Orissa High Court Chief Justice Justice S. Muralidhar and chaired by Senior Advocate Indira Jaising in the memory of the distinguished civil servant D.S. Borker. Justice Muralidhar in his lecture focused on the visions of the Indian legal system for 2047 with a particular focus on the judiciary and judicial administration.
‘The broken legal system that we inherited has remained broken’
Over 5.1 crore cases in the district judiciary, 65 lakh in the High Court and nearly 93,000 in the Supreme Court, Justice Muralidhar said, remain pending. However, he pushed back on the narrative that judges alone are to blame.
“To state the obvious, we do not have enough judges,” he said while urging the need to acknowledge the work being done by the existing judicial workforce that is clearly overworked.
Among Justice Murlidhar’s sharpest criticisms was the collegium system and what he described as unexplained executive interference in appointments over the past twelve years, compounded by a lack of transparency in criteria.
“The disclosure by the Supreme Court during Justice Sanjiv Khanna’s tenure as Chief Justice of India of the criteria called the Performance Appraisal Template for evaluating candidates for appointment both to the HC and the SC is only a half-way house to transparency. We still need to know whether the candidates found eligible satisfied the criteria. We owe that disclosure to the people of this country. They must have the confidence that only the best among those available are being appointed to the HCs and the SC,” he said, adding “One wishes this happens much before 2047.”
‘Judges alone are not responsible for the delays in disposal of cases’
“It is too simplistic to think that by merely appointing more judges the existing pendency of cases can be effectively tackled,” Justice Muralidhar said explaining that there are many cases among the 5.5 crores in the formal legal system that are actually dead cases; where the parties are not alive, the subject matter does not exist, the law has changed, or the government’s position on the issue has changed irreversibly. He proposed a concrete, near-term solution of deploying young law graduates, researchers, and retired judicial officers to comb through court records and weed out cases that are effectively dead.
This exercise, he said, could realistically be completed within five years, making the docket by 2047 “much more manageable,” and dismissed the oft-repeated claim that India’s backlog would take 300 years to clear.
He also informed that the mental fatigue of judges is seldom acknowledged or accounted for within the system as judges are also bogged down by non-judicial administrative tasks. “It is of course a myth that outside of court working hours judges have a jolly good time. Most of the judges, and at all levels, are working beyond court hours attending to administrative tasks: examining building plans for new court rooms, purchasing computers and furniture, choosing uniforms for staff, examining complaints against judges in the district judiciary and deciding on whether to order an enquiry, fixing the menu for the next grand event being hosted by the court; preparing for lectures to deliver at judicial academies, “ he said.
Who else contributes to the delay in disposal of cases?’
First and foremost, the State, informed Justice Murlidhar. “By their actions of taking arbitrary decisions, or not deciding at all, or by unthinkingly criminalising normal activities in a democracy like peaceful protests and unnecessary arrests, governments drive people to courts,” he said.
Second, both government counsel and private lawyers.
“Judges at all levels, are deeply frustrated by this intransigence but can do little about it since very often no real progress can be made in a case without the participation of the government counsel.”
“Private lawyers fare no better. In the market place of lawyers, 80% of the work in any court is with 20% if not less of the lawyers in that court. At the level of the district judiciary, especially in the remote towns and districts, full-fledged trials of civil and criminal cases rarely take place. There is an increasing tendency to only argue interim injunction applications in civil cases and bail applications in criminal cases.”
The vision for the bar of 2047, according to him, is a reformed Bar Council of India (‘BCI’) that is democratic in its functioning, insulated from interference by the executive and the judiciary, responsive to the needs of the litigant public, prompt in dealing with complaints of professional misconduct by lawyers and being an upholder of constitutional values and human rights.
Legal Education and Reforms
Justice Muralidhar called for legal education to be decoupled from BCI control, proposing an independent body to set uniform standards given the widening quality gap between elite law schools and the rest.
“Even the utility of having sitting judges of the HC and the SC in the governing bodies of the NLUs needs a rethink. It is time to question the mindless expansion of NLUs particularly since there is a real shortage of good law teachers,” he said while adding that “The vision for the legal system of 2047 is of law students who have learnt to spot and fight against injustice; who have imbibed constitutional values; and have developed the ability to question power and authority.”
Attempts at legal reform
He argued that existing legal reforms have largely failed to address the evils of costs, delays, and uncertainties. First he dealt with Special and Fast-Track Courts, which according to him, merely redesignate existing, already overworked judges without expanding the judiciary’s actual capacity. Second, he argued are tribunals which merely acted as poor substitutes for courts and suffering from vacancies and short tenures and ultimately channeling disputes back into the High Courts and Supreme Court on appeal. Third, according to him, was arbitration which is becoming afflicted by high costs and delays, still requiring court intervention for final enforcement.
Broader Constitutional Vision and Hope
Beyond judicial administration, Justice Muralidhar’s address criticised the criminalisation of personal choices such as marriage and diet, referencing recent Uniform Civil Code legislation in BJP-ruled states, and called for repeal of preventive detention laws and stringent bail provisions under statutes like the UAPA and PMLA. He also flagged the Supreme Court’s delays in deciding matters such as the reorganisation of Jammu and Kashmir and downgrading its status to Union territory, demonetisation, and electoral bonds.
He invoked Ambedkar’s warning about India entering “a life of contradictions,” expressing hope that the prophecy would not still ring true by 2050. He also expressed his wish for legal reforms to be litigant-centric and not built around the convenience of judges, lawyers, or the state. “Our law-making processes are by and large top-down. The people likely to be impacted are seldom consulted. The language of the law makes it difficult to comprehend. Courts can do little to persuade acceptance of laws by the people. It is often saddled with the consequences of their failure,” he said.
“In 2047 an Indian should be astonished to discover that in India’s past there was a time when laws would punish the poor for who they were and not for what they did; when a sex worker and not her exploiter would be punished; when a neglected juvenile and not her tormentor would be punished; when seeking alms would be a crime as would be sleeping on a pavement for want of shelter. They would, I suppose, also be astonished that the Supreme Court would after declaring unreasoned orders of internet shutdown to be unconstitutional, refuse to enforce its judgment; after declaring that unannounced and arbitrary demolitions of homes of protestors, and those merely accused of crime, particularly the minorities, to be legally impermissible, fail to enforce its own directions,” he said.
Justice Muralidhar also praised the Gen Z-led protests of July this year as proof that young Indians remain committed to truth, compassion, and holding power accountable. “The recent protests by our Gen Z,” he said, “assure us that democracy in India will not be allowed to die and that people will turn to the Constitution and safeguard it in order to preserve this country’s future. “The week of 20th July this year was one of relief and joy. It was reassuring to know that our young generation will not be swayed by rhetoric and propaganda, by powerful oratory reminiscent of the goebellsian polemic, and empty promises of acche din and viksit bharat. They remained undeterred by the demonising of the dimagi naxal. It told us that this generation values giving, compassion and adherence to truth. It does not hesitate to ask questions of those in power. Above all, it is soul-satisfying to know that Gen Z has a wonderful sense of humour. The irreverence of the Gen Z is a sure sign of democratic progress,” he said.
Constitution is being ignored: Indira Jaising
Chairing the lecture, Senior Advocate Indira Jaising added her own sharp diagnosis of the crisis, pointing to a class dimension that is often left out of discussions on judicial delay. Wealthy and powerful litigants, she said, consume a disproportionate share of court time which is a pattern that compounds the burden on ordinary litigants waiting years for a hearing.
Jaising went further, arguing that India is effectively governed by two parallel systems, the Constitution of India, and a shadow system that steadily undermines it. The erosion, she said, is not happening through open confrontation but quietly.
She recalled responding to Gen Z asking her what gives her hope amid such bleak circumstances, while pointing to the Constitution itself. “So long as we prevent the ruling party from changing the Constitution of India, there is hope,” she said. “If the Constitution stays the way it is, there is not a single action by this government which is extra-constitutional [that] cannot be changed.”
Instituted in 1999, the D.S. Borker Memorial Lecture series addressed ‘My Vision of India: 2047.’ One of the illustrious speakers was former President of India K.R. Narayanan, two have come from the legal field, Senior Advocate Colin Gonsalves in 2015, and Justice A P Shah in 2023. The lectures have also been chaired by eminent legal figures, including Mr Soli Sorabjee in 2012, Prof Upendra Baxi in 2017 and Justice Sanjay Kaul in 2023. This year, however, as Justice Muralidhar put it marked a “complete takeover by lawyers.”
