Reforming India's Justice System: A Long Way to Go (An Interview of Adv. Jhuma Sen)

Abhish K. Bose :  Will the Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita, and Bharatiya Sakshya law translate into tangible benefits for ordinary citizens, particularly in terms of access to justice, accountability, and protection of rights?

Jhuma Sen  – The Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita, and Bharatiya Sakshya Adhiniyam are presented by the State as instruments of modernisation—citizen-centric, technologically responsive, and victim-sensitive. On paper, they introduce time-bound investigations in sexual-offence cases, statutory witness protection, mandatory medical care for victims, expanded use of electronic evidence, and safeguards concerning under-trial detention. These are not trivial reforms. They codify principles long read into Article 21 jurisprudence and promise procedural dignity to victims historically marginalised by the criminal process.

Yet doctrinal promise must be distinguished from institutional reality. The codes presume forensic capacity, trained investigators, gender-sensitive policing, and functioning witness-protection regimes—assumptions that empirical studies of India’s district-court infrastructure repeatedly problematise. Simultaneously, the expansion of national-security offences and enhanced police powers signals a countervailing trajectory: procedural efficiency coupled with coercive potential. The true measure of these codes, therefore, will not lie in legislative text but in everyday criminal justice practice—where delay, custodial violence, and investigative opacity continue to define access to justice for the poor.

The BNSS effectively ring-fences the old procedural regime for “legacy” cases. By continuing the CrPC for investigations, trials, and appeals already instituted before the BNSS commenced, the statute ensures that most immediate, lived criminal processes will not receive the touted “citizen-centric” gains—nor face the new constraints—until the system turns over to fresh filings. In effect, the reform’s benefits (and burdens) are structurally deferred.

Even as the BNS is framed as modernising and rationalising penal law, its Objects and Reasons foreground a widened national-security frame—new offences keyed to terrorism and organised crime, and an elastic category of conduct described as secession, armed rebellion, subversive or separatist activity, or acts “endangering” sovereignty and unity. The risk is that open-textured security offences, coupled with enhanced coercive capacity, reorient criminal law from rights-protection toward governance by suspicion.

The codes presuppose what the justice system chronically lacks: forensic infrastructure at scale, trained investigators, sufficient women officers and magistrates to operationalise gender-sensitive procedures, and funded, functional witness-protection regimes. Longstanding empirical accounts of district courts and policing show that capacity constraints—not merely doctrinal design—determine outcomes. Without institutional investment and accountability, “time-bound” and “victim-centric” provisions risk becoming paper rights rather than lived entitlements.

In short, the new codes may recalibrate the grammar of criminal law, but whether they democratise justice or merely modernise control remains an open constitutional question. 

Abhish K. Bose  : Would an All India Judicial Services Examination (AIJSE) effectively address systemic issues plaguing India’s judiciary, such as vacancies, delays, and corruption, or would it create new challenges in representation and regional disparities?

 

Jhuma Sen  :  The proposal for an All India Judicial Service rests on an intuitively attractive premise: centralised recruitment could standardise quality and address chronic vacancies in the subordinate judiciary. Constitutionally, Article 312 permits such a service, and reform discourse has long invoked administrative efficiency and uniform training as justifications.

Critical policy scholarship increasingly unsettles the foundational premise of an All India Judicial Service—namely, that chronic vacancies and uneven quality in the subordinate judiciary stem from an absence of capable candidates at the State level. Contemporary evidence suggests otherwise. Several States already conduct rigorous, competitive recruitment examinations, and the persistence of vacancies is more plausibly attributable to structural and administrative dysfunctions: delayed notifications, fractured coordination between High Courts and State governments, and inadequate planning of sanctioned strength. Parliamentary data confirming sustained vacancy levels does not, by itself, validate the claim that a centralised examination would remedy these deficits. Without simultaneous attention to infrastructure, staffing cycles, and institutional capacity, AIJS risks operating as a technocratic solution to what are, in substance, governance failures.

Any proposal for centralised recruitment must also confront the constitutional architecture of the subordinate judiciary. Articles 233 to 235 deliberately vest control over appointments, postings, and promotions in the High Courts and the States, embedding the trial judiciary within India’s federal and independence-protective design. Supreme Court jurisprudence—from the Second and Third Judges Cases to the invalidation of the NJAC—repeatedly underscores that insulation from executive dominance is not a matter of administrative convenience but a structural component of the Constitution’s basic framework. A nationally controlled judicial service therefore raises not merely pragmatic concerns but constitutional anxieties about the redistribution of institutional power.

Further, Trial courts are not abstract adjudicatory sites; they are linguistically and socially embedded institutions. Judicial work at the district level unfolds through vernacular languages, region-specific statutes, and intimate engagement with local social formations. A single, centralised examination—particularly one mediated through English-dominant evaluative frameworks—risks privileging metropolitan legal capital while marginalising candidates rooted in local communities. Parliamentary debates have accordingly warned that AIJS could erode the representational character of the subordinate judiciary, distancing it from the very populations whose disputes it adjudicates. The question, then, is not merely one of efficiency but of democratic legitimacy.

The narrative that recruitment reform alone can resolve judicial delay or corruption reflects a reductionist understanding of institutional dysfunction. Delay emerges from a dense ecology: case-flow mismanagement, adjournment culture, infrastructural scarcity, technological unevenness, and the layered structure of appeals. While the quality of entry-level judges matters, empirical work on court administration demonstrates that managerial and structural deficits are equally determinative. Similarly, corruption is less a product of recruitment opacity than of weak disciplinary regimes, opaque transfer practices, and insufficient transparency in asset disclosure and oversight. Centralised recruitment may mitigate certain local patronage networks, but it cannot substitute for systemic accountability.

In this light, AIJS appears less as a comprehensive reform and more as a juridical abstraction—promising structural transformation while leaving the deeper political economy of judicial dysfunction largely untouched.

 

Abhish K. Bose : In light of India’s digital divide, what specific e-judicial initiatives and policy interventions can bridge the access-to-justice gap for marginalized communities, ensuring equitable, affordable, and swift legal recourse?

 

Jhuma Sen : India’s e-Courts project has undeniably transformed procedural visibility. Online filings, virtual hearings, and open judicial data have expanded transparency and, for many urban litigants, efficiency. Yet digitalisation operates within a profoundly unequal technological landscape. Connectivity gaps, device poverty, linguistic barriers, and digital illiteracy risk converting technological reform into a new axis of exclusion.

Critical empirical scholarship on India’s digital-courts project exposes a foundational contradiction: reforms framed as instruments of access often presuppose precisely the material and cognitive resources that marginalised litigants lack. Studies demonstrate that e-filing systems, virtual hearings, and online information displays are built upon assumptions of stable internet connectivity, personal digital devices, functional literacy, and linguistic fluency. These assumptions operate as silent thresholds of participation, effectively filtering entry into the justice system along existing lines of class, caste, geography, and education.

Moreover, digitalisation frequently externalises procedural costs onto litigants. The need to rely on cyber-cafés, intermediaries, or paid technical assistance to file or access documents converts technological “efficiency” into a new site of economic burden. Virtual hearings, far from neutralising hierarchy, may instead stage it in sharper relief: while affluent parties appear from private, technologically secure environments, marginalised litigants join proceedings from crowded homes, village kiosks, or public terminals devoid of privacy or dignity. Parallel policy analyses caution that digitisation of court records and transparency mechanisms—absent assisted access, multilingual interfaces, and publicly available terminals—risks excluding those for whom transparency is constitutionally most vital.

The judiciary’s extensive reliance on video-conferencing during the COVID-19 pandemic offered proof of institutional adaptability, ensuring formal continuity of adjudication under conditions of crisis. Yet judicial commentary and academic analysis alike recorded that this continuity was unevenly distributed. Disparities in bandwidth, device access, and digital competence among members of the Bar translated into unequal advocacy conditions, while under-trial prisoners and rural litigants faced acute barriers in confidentially consulting counsel or meaningfully participating in proceedings.

Consequently, contemporary scholarship on digital judicial reform insists that technology cannot be treated as a self-executing solution to access-to-justice deficits. Digital courts must instead be situated within a broader architecture of social inclusion—universal connectivity, affordable hardware, sustained digital-literacy initiatives, and accessibility-centred design attentive to disability. Without such structural embedding, digitalisation risks transforming the constitutional promise of equal access into a technologically mediated hierarchy, where efficiency for some coexists with exclusion for many.

Abhish K. Bose : How can India’s judiciary leverage alternative dispute resolution mechanisms, such as mediation and arbitration, to reduce case backlog and improve access to justice for marginalized communities?

Jhuma Sen  : India’s ADR architecture—Lok Adalats, mediation, arbitration, and community dispute resolution—is among the most extensive globally. Properly implemented, it offers speed, reduced cost, and relational repair, features especially valuable to economically vulnerable litigants for whom prolonged litigation is itself injustice.

However alternative dispute resolution practice has demonstrated that mediation does not operate in a social vacuum. Where underlying relations are structured by inequality—between landlord and tenant, employer and worker, dominant and subordinated caste—an institutional preference for rapid settlement may reproduce, rather than redress, hierarchy. The normative language of voluntariness can obscure subtle coercions: economic dependence, social stigma, or fear of retaliation may convert “consent” into compelled compromise.

The Mediation Act seeks to contain these risks through doctrinal safeguards. By excluding certain categories of disputes from mediation—particularly those implicating rights in rem, serious criminal liability, regulatory enforcement, and land-acquisition compensation—the statute acknowledges that some conflicts demand authoritative adjudication rather than negotiated closure. It further permits judicial scrutiny of settlements in sensitive domains such as matrimonial disputes and confines enforceability to agreements untainted by fraud, corruption, impersonation, or subject-matter ineligibility. These mechanisms gesture toward a rights-protective mediation framework, though their effectiveness will ultimately depend on judicial vigilance and institutional culture rather than statutory text alone.

Equally central is the ethical and professional integrity of mediators and Lok Adalat functionaries. The legitimacy of consensual justice turns on the neutrality, competence, and accountability of those who facilitate it. Regulatory architectures—such as NALSA’s norms governing legal-aid clinics and mediator conduct, alongside the accreditation and disciplinary authority of the Mediation Council of India—represent attempts to institutionalise these values. Yet regulation, while necessary, is not self-executing. Without sustained monitoring, transparent evaluation, and meaningful consequences for misconduct, the promise of equitable mediation risks dissolving into procedural symbolism, leaving structural inequality substantively undisturbed.

ADR should not be romanticised as community harmony nor dismissed as informal compromise. Its constitutional value lies in whether it expands genuine choice for the marginalised rather than substituting adjudicatory rights with pressured consensus.

 

Abhish K. Bose :  In the context of India’s Uniform Civil Code (UCC) debate, how can the principles of constitutional morality be applied to balance individual rights with community identities ?

 

Jhuma Sen: Constitutional morality, as articulated by the Supreme Court, functions as a normative compass directing law toward dignity, equality, and liberty—even when social practices claim religious or cultural legitimacy. Jurisprudence on gender justice, queer rights, and religious reform demonstrates the Court’s willingness to prioritise individual dignity over discriminatory tradition.

Contemporary constitutional jurisprudence on privacy, gender equality, and religious freedom—spanning adjudication on same-sex relationships, temple entry, unilateral divorce, and transgender recognition—has steadily affirmed a foundational proposition: community-sanctioned practices cannot claim immunity from the Constitution where they trench upon the individual’s core entitlements to dignity, autonomy, and equality. In this sense, constitutional morality functions as a counter-majoritarian ethic, displacing inherited hierarchies that survive under the cover of tradition or faith.

Yet critical constitutional scholarship resists framing this terrain as a crude binary between “rights” and “religion.” Instead, it urges a dialogic constitutionalism attentive to the associative value of communities and the lived meanings embedded in personal-law traditions. Constitutional morality, on this account, does not demand homogenisation; it insists only that collective norms remain bounded by non-derogable constitutional minima—freedom from discrimination, protection of bodily autonomy, and equal civic status. The task is therefore neither preservation nor erasure, but principled transformation.

Read through this doctrinal lens, any move toward a Uniform Civil Code—or incremental reform within plural family-law regimes—must begin with the elimination of structural discrimination grounded in sex, caste, religion, or sexual orientation across domains such as marriage, divorce, guardianship, and succession. Alignment with the guarantees of equality, liberty, and dignity under Articles 14, 15, 19, and 21 becomes not merely desirable but constitutionally compelled.

At the same time, constitutional morality does not authorise a flattening of cultural difference where such difference coexists with equality. Personal-law systems frequently serve as repositories of identity, belonging, and historical memory. The constitutional project, as articulated by the Court, therefore demands calibrated reform: dismantling subordination while preserving those group-differentiated practices that remain consistent with dignity and equal citizenship. In this equilibrium between transformation and pluralism lies the true constitutional horizon of any future civil-code project.

The challenge, therefore, is not uniformity but justice: reform must dismantle discrimination without erasing plural identities. Constitutional morality demands transformation through dialogue rather than coercion.

 

Abhish K. Bose : What institutional reforms can ensure the independence of India’s judiciary, particularly in the face of executive overreach or pressure, and protect judges from external influences?

 

 Jhuma Sen: Judicial independence in India is constitutionally entrenched yet institutionally contested. The collegium system, affirmed as part of the basic structure, insulates appointments from executive dominance but has drawn sustained criticism for opacity and lack of accountability.

The constitutional scheme governing the higher judiciary—spanning Articles 124 to 147 for the Supreme Court and 214 to 231 for the High Courts—constructs independence through durability and non-retaliation: judges hold office until constitutionally prescribed retirement, their salaries and pensions cannot be diminished post-appointment, and removal is confined to proof of misbehaviour or incapacity through an onerous legislative process. Judicial interpretation deepened these textual safeguards. Beginning with the Second Judges Case and its sequelae, the Court located primacy in the Chief Justice of India acting collegially with senior judges, thereby relocating appointment authority from the executive to the judiciary itself. The subsequent annulment of the constitutional amendment establishing the NJAC extended this logic, holding that executive participation capable of vetoing judicial choice would erode the structural independence embedded in the basic structure.

Yet contemporaneous institutional commentary has underscored the paradox this jurisprudence produced: while independence was fortified against external interference, opacity within the collegium persisted. Calls for transparency, articulated criteria, and reasoned disclosure signal an unresolved tension between autonomy and accountability within the constitutional design.

 Scholarly and policy debates now converge on the proposition that independence must be institutionally deepened rather than merely defensively preserved. Transparency in appointments—through publicly articulated standards of merit, diversity, integrity, and social representation, accompanied by reasoned collegium disclosures and enforceable timelines for executive response—has emerged as a central reform demand. Equally significant is financial autonomy. Dependence on executive-controlled budgeting can function as a subtle modality of influence, prompting proposals for formula-based allocations and enhanced internal fiscal governance by constitutional courts.

At the same time, the legitimacy of judicial independence depends upon credible mechanisms of internal accountability. Shielding appointments and tenure from political intrusion cannot justify institutional impunity. Reform proposals therefore contemplate strengthened in-house disciplinary processes with defined timelines and calibrated public communication, alongside the cautious exploration of an independent oversight body combining judicial predominance with limited lay participation—structured so as to preserve independence while addressing opacity and misconduct.

Independence without accountability risks insularity; accountability without independence invites capture. Constitutional design must hold both in principled tension.

 

Abhish K. Bose :  How can India’s legal aid system be strengthened to provide effective representation and support to marginalized communities, and what role can technology play in bridging the gap?

 

Jhuma Sen: India’s legal-aid framework is normatively robust, rooted in Article 39A and elaborated through the Legal Services Authorities Act. Courts have repeatedly recognised legal aid as integral to fair procedure under Article 21. Yet structural deficits persist: low awareness, uneven quality of representation, and logistical barriers for marginalised communities.

The constitutionalisation of legal aid has not dissolved its material absences. Empirical studies across jurisdictions, including Delhi, reveal a persistent disjunction between formal entitlement and lived accessibility: low awareness among eligible populations, uneven quality of representation, chronic overburdening of legal-aid counsel, and fragile mechanisms for monitoring outcomes. Even State self-reporting in international human-rights fora acknowledges that marginalised communities continue to encounter informational deficits, cultural distance from legal institutions, and logistical barriers to reaching courts and lawyers. The constitutional promise of equal access thus remains mediated by the social and infrastructural conditions that structure everyday encounters with law.

Within this landscape, technology has emerged as a partial—though not self-executing—instrument of inclusion. The Tele-Law initiative, operational since 2017, attempts to collapse geographic and economic distance by connecting marginalised individuals to panel lawyers through video and audio interfaces located in community service centres. Governmental accounts emphasise its orientation toward historically excluded constituencies—women, Scheduled Castes and Scheduled Tribes, minorities, and persons with disabilities—and its integration with the institutional architecture of legal services authorities for subsequent representation.

Parallel efforts in digital legal literacy, including visually oriented and vernacular educational materials developed through academic-government collaboration, recognise that formal rights remain inert where knowledge is absent or fear of institutions persists. Awareness, in this sense, becomes a precondition of enforceability rather than a peripheral supplement to legal aid.

In fact, any serious conversation on access to justice in India must begin at the trial court—the institutional site where constitutional rights are most frequently invoked and most routinely strained. District and subordinate courts remain structurally overburdened: staggering caseloads, chronic judicial vacancies, inadequate courtrooms, insufficient staff, and procedural cultures shaped by adjournment rather than adjudication. For vast numbers of litigants—particularly the poor, women, Dalits, Adivasis, migrants, and under-trial prisoners—the trial court is not merely the first point of contact with the justice system; it is often the only one. Delay at this level is therefore not administrative inconvenience but substantive denial of rights. Justice postponed in the trial court rarely reappears meaningfully at the appellate stage.

Within this landscape of institutional scarcity, technological transformation is frequently invoked as a corrective horizon—e-filing, virtual hearings, digital records, algorithmic case management. Yet for the everyday reality of the trial judiciary, technology often operates less as lived reform and more as aspirational rhetoric. Many court complexes continue to struggle with unstable electricity, limited internet connectivity, non-functional hardware, and minimal technical support. Judges and court staff work within infrastructures where even basic digitisation is uneven, while litigants themselves frequently lack devices, literacy, or privacy necessary to participate in digital processes. The distance between policy imagination and courtroom reality is therefore profound.