When Judges err, someone else may be paying a heavy price

Institutional mechanism for review must for every judgement 

By K Raveendran

Justice Sanjay Karol’s observation on leaving the Supreme Court that judges are not gods and cannot get every judgment right deserves to be read as something larger than the customary humility of a retiring judge. It touches an uncomfortable truth at the heart of the justice system: judicial authority is enormous, judicial error is inevitable, but the consequences of that error are distributed profoundly unequally.

Justice Karol’s more important point was perhaps the one accompanying his acknowledgement of fallibility. Judges, he said, must see the person and not merely the petition before them. That distinction goes to the centre of the problem. To the legal system, an erroneous judgment may be corrected by an appellate court, reconsidered in review or eventually overtaken by another ruling. To the person affected, however, the mistake can mean imprisonment, dispossession, financial ruin, loss of employment, separation from family or years spent fighting an allegation that should never have survived judicial scrutiny.

The conventional defence of the system is that courts are organised hierarchically precisely because judges can make mistakes. Decisions of subordinate courts can ordinarily be appealed before higher courts; High Court rulings can reach the Supreme Court; review jurisdiction provides another, narrower safeguard. No serious judicial system could function without recognising fallibility and creating mechanisms to correct it.

But this answer is adequate only on paper. An appeal is not an automatic correction mechanism. Somebody has to identify the error, obtain competent legal advice, prepare the challenge, pay lawyers and court-related expenses, preserve records, comply with limitation periods and sustain the litigation psychologically and financially for however long the process takes. The constitutional availability of an appellate remedy therefore does not necessarily translate into an equally available practical remedy.

This is where judicial fallibility crosses path with economic inequality. For a corporation, wealthy individual or government agency, an adverse order can become the beginning of another round of litigation. For a daily-wage worker, prisoner, small farmer, tenant or impoverished family, it can effectively become the end of the road. The same legal system formally gives both parties the right to appeal, but their capacity to exercise that right may be radically different.

India has attempted to bridge this divide through legal-services institutions and constitutionally grounded legal aid. Yet the Supreme Court itself has repeatedly encountered failures in that machinery. Earlier this year, a Bench that included Justice Karol issued significant directions after confronting delays in appeals involving people dependent on legal aid. The problem was serious enough to require institutional timelines and structural intervention. That episode supplies an important context to Karol’s farewell remarks: access to appellate justice cannot be treated as meaningful merely because a statute or constitutional principle says that access exists.

A delayed appeal can itself amount to injustice. A prisoner whose conviction is eventually overturned cannot be given back the years spent in custody. A person acquitted after prolonged incarceration cannot recover lost childhoods of children, careers, relationships or reputation through a paragraph in a final judgment. Monetary compensation, where available, is at best an imperfect substitute.

The issue becomes still more pressing because judicial error need not arise from dishonesty, incompetence or prejudice. Courts decide under constraints. Evidence can be incomplete. Witnesses lie. Police investigations can be defective. Lawyers can perform poorly. Precedents can conflict. Facts may be misunderstood. Statutes invite different interpretations. Heavy caseloads create pressure. Even conscientious judges operating with complete integrity can reach conclusions that another equally conscientious bench later finds wrong.

Technology adds another layer of risk. The Supreme Court this year had to confront decisions affected by reliance on non-existent, AI-generated legal citations. The episode illustrated a new version of an old danger: an authoritative-looking proposition can enter judicial proceedings without possessing the foundation attributed to it. Artificial intelligence may improve legal research, but it can also accelerate error unless judges and lawyers rigorously verify what machines produce.

Justice Karol’s formulation  that judges are not gods therefore carries an institutional message. Fallibility should not merely be acknowledged ceremonially; systems must be designed around it.

Courts understandably protect the principle of finality. Litigation cannot continue indefinitely, and every judgment cannot remain permanently open to challenge. Legal certainty is itself an important component of justice. But finality and correctness exist in tension. The poorer or less informed the litigant, the greater the risk that finality becomes merely another name for an error that nobody had the resources to correct.

This makes the quality of justice at the first level especially important. Discussions about judicial reform frequently concentrate on the Supreme Court and constitutional controversies, although most citizens experience justice far below that level. Magistrates, district judges, tribunals and administrative adjudicators make decisions that determine liberty, property and livelihood long before a constitutional court becomes involved.

Strengthening these institutions may consequently prevent more injustice than expanding opportunities for endless appeals. Better judicial training, manageable caseloads, reliable court records, competent legal representation from the beginning, greater forensic quality and reasoned judgments capable of meaningful scrutiny can reduce the number of errors requiring correction later.

Legal aid also needs to be understood differently. Giving somebody a lawyer in name does not provide equal justice if that lawyer lacks preparation, time, resources or accountability. Effective representation must mean representation capable of recognising a bad judgment and challenging it promptly. Otherwise, appellate rights become disproportionately valuable to people who can buy superior legal expertise.

There is another difficulty rarely acknowledged when judicial errors are corrected. Courts frequently overturn convictions, reverse findings or disapprove earlier interpretations without asking what happened to the people who lived under those erroneous decisions. Judicial correction tends to operate prospectively within the legal record while human damage remains retrospective and largely private.

That does not justify creating a culture in which judges fear personal consequences whenever their decisions are reversed. Judicial independence would be gravely weakened if ordinary legal error became grounds for punishment. A distinction must remain between good-faith judicial disagreement and misconduct, bias, recklessness or corruption.

Accountability should therefore focus primarily on institutional learning rather than retaliation. Patterns of reversal can be studied. Recurring procedural failures can be identified. Legal-aid breakdowns can be corrected. Serious miscarriages of justice can trigger mechanisms for compensation. Technology can help identify unusually long incarcerations, abandoned appeals and contradictory orders before they disappear into administrative obscurity.

The legitimacy of courts ultimately depends not upon maintaining an illusion of judicial infallibility but upon demonstrating that fallibility is anticipated, detected and corrected as fairly as possible. Justice Karol’s words are valuable precisely because they reject the mythology that authority guarantees correctness. Judges are human. That proposition is uncontroversial. The harder question is whether the judicial system has been designed adequately for the consequences of their humanity. For those with money, influence and first-rate lawyers, a mistaken judgment can often be challenged again. For those without them, it may acquire the permanence of fate. A justice system committed to equality must ensure that the difference between error and correction is not determined by the litigant’s ability to pay. (IPA Service)