Justice In Jeopardy.. Resolving The Debate

I write this article motivated by the query that a dear fellow blogger, Rahul V. Nair (who blogs at freedomofexpression ) put to me as thus, after reading my article Justice in Jeopardy... Why ?

"Hi Anupam Nice Post, could you pls explain how our Judiciary should be upgraded for future( I would like to know about it in detail)and how allotting more money in the budget can help it. I am just curious to know about it that's all, hope u won't mind telling."

First of all I heartily thank Rahul and all other readers who gave their valuable time for reading Justice in Jeopardy... Why ? and sharing their precious opinions in this regard. As I have mentioned earlier in that article. I wrote it when I read another article called "Justice In Jeopardy" written by a learned fellow blogger. I had to write it, especially when I read the comments of people who read her article. Judiciary is so often misunderstood and for all the misinformed reasons. So I took it upon myself to clarify a few issues. So that people can make informed opinions then. It was after reading my article that Rahul has asked his question and I'm more than glad to answer his query.

I don't mind at all answering his highly significant question. Half way replying to his comment / query I decided to dedicate a full post for it.  As for his question, it's very difficult to write everything I want to say. There are so many intricate issues that provide the lifeblood for our judiciary that it's difficult to concisely put them in a single answer. However concentrating on the two major issues that I'v dealt with in my article viz. delay in disposal of cases and mechanism of investigation, I'll state some bullet points which in my humble opinion could be crucial in improving the present state of affairs.

Let me first deal with the delayed justice aspect. It must be borne in mind that the actual rate of disposal of cases per judge has been consistently improving in recent years, but the rate of institution of proceedings has been growing at an even faster  pace. It is this growing gap between the rate of disposal and the rate of institution of litigation that is a cause for worry. It is in response to these problems, that it is important to implement effective strategies for proper case management. I'll say that there needs to be a phase wise exponential increase in the number of Courts and Judges all over the country. Now that includes increasing the number of Courts in a district, appointment of Court staffs, building of infrastructure to let the Courts function in a dignified manner.

The approach has to migrate from adversarial system to re conciliatory wherein instead of fighting out long drawn legal battles, parties with the assistance of Courts and their advocates are able to mutually come to a settlement in an expeditious manner. Several such methods such as Lok Adalats, Arbitration techniques, Conciliation proceedings have to be given utmost significance for dispute resolution. These are popularly known as ADR (Alternate Dispute Resolution) techniques . However this is more likely in relation to civil disputes than criminal cases. Since crimes are treated as wrongs against the society rather than as wrongs against the victim only.

Case management and planning is also vital to the functioning of a modern judiciary. Its implementation will however at some stage require serious reflection on the changes required in our system. I am however confident and  optimistic that if implemented appropriately it will go a long way in addressing the problems of arrears and delay.  

Then there have to be substantial changes in the procedural laws of our country, which I believe, more often than not, tie the hands of Courts from coming down heavily on protracting litigators. This includes mandatory large amount of fine / costs imposable on parties who deliberately delay hearing of their cases and mandatory fixation of time limit for disposal of cases, particularly sensitive cases like crimes against women and terrorism cases. These will make a significant improvement in the rate at which cases are being disposed of today. One must understand that no Court or Judge would like to see his office stacked with a large number of case records. Courts are always inclined to lessen their burden. It's a natural tendency. But co operation must also flow from the litigators including their respective lawyers, who must make it a point not to delay hearing of their cases.

The Govt. also needs to substantially increase the number of Fast Track Courts and special courts, and come up with special tailor made procedural laws which would govern their functioning. For example a fast track court set up to adjudicate upon the trial of certain alleged terrorists cannot expedite the trial in a noteworthy manner, if it too like normal Courts is guided by the same laws with regard to procedures of hearing and adjudication.

The second most important aspect of dispensation of justice demands a fair, fearless and effective investigation. So that the Courts have before them a clear picture through the evidence collected by such exemplary investigation. Investigators have to be free from all kinds of political and / or institutional pressures in performing their duties. In several cases delay in hearing occurs due to non attendance of official witnesses especially Police witnesses. The Police deptt. is understaffed and they find it difficult to manage their time between attending to highly urgent duties of law and order management and their task of attending equally important Court proceedings and giving their evidence. My humble suggestion is to separate a specific department of Police dedicated to investigation and giving evidence in cases. This would solve the problem of their unavailability to testify in Courts as well as help in timely adjudication of cases.

The much talked about witness protection program is also a crying need of the hour. Since it is often seen that witnesses say something to Police at the time of investigation but change their stand when it comes to testifying under oath before a Court. This results in the acquittal of the accused persons leading to a popular belief that Courts are incapable of punishing the guilty. What can be done here is that witnesses have to be given assurance of real protection and if need be rehabilitation in lieu of their truthful testimony in Courts. But this requires indulgence of honest officers at all levels of this system. If any witness suffers despite such a witness protection scheme, no one will ever come forward to testify the truth in Courts.

Furthermore there needs to be a realistic system of expenditure reimbursement of witnesses who come to the Courts. One which would adequately repay them the expenses incurred by them in coming and testifying for a case. It is also important that the mechanism which allows this facility is a swift one and the reimbursement is done without much hassle to the witness. It is also required that if the party who is supposed to examine / cross examine a particular witness on a given date of hearing, intentionally evades doing so, without any just cause, for unduly harassing the witness or for any other mala fide purpose, he be made bound to pay adequate cost or compensation to that witness. If such actions are still repeated then there must be some law which mandates forfeiting that person's right to ask any question to that witness thereafter.

I've also been asked as to how allotting more budget for the judiciary will help in improving it. Isn't it obvious that all the above initiatives will require infrastructure, appointment of staffs etc for which budget is an indispensable essential. Its a complete mockery that the very institution which is often quoted as the last hope for the exploited and the injured, is so neglected. The Govt. has to make a specific planned budget allotted to judiciary, much more than the present share it accords for it so that all the above aims are achieved in a time bound manner and the hope of common man is redeemed in the justice delivery mechanism. No nation which aspires to have a sound and corruption free governance can claim to achieve it without strengthening its judicial system first.

The readers must understand that there are several technical aspects which also require substantial focus for a holistic upgradation of our judiciary. The issues which have been discussed here are only a few of those. The discussion is much complex and multifaceted to be confined to a single write up. Hence readers are advised not to construe these factors as conclusive or exhaustive in determining the future of our justice delivery mechanism.

Justice in Jeopardy... Why ?

A very talented fellow blogger recently published an article titled "Justice in Jeopardy" wherein she has very lucidly pointed certain issues which concern the Indian judiciary. I intend to explain some of the issues raised in that article.

First things first. I'm by no means claiming that Indian judiciary is pristine or is under no requirement of significant upgradation and improvement. I'm nobody to dispute that reality since anyone who has had an experience with litigation in an Indian Court is likely to have had a vary harrowing experience, particularly in reference to the time consumed in arriving at a verdict. Also several eminent jurists have pointed several foibles in the justice delivery system of our country and I do not intend to contradict them. But what is essential in this context is that when we read or hear against our judicial system we, as responsible persons, must also strive to analyse the cause (s) behind those facts.

The article that I've mentioned starts with the hackneyed grievance that the wait for justice in India is always unduly protracted. Cases to get decided take an unbelievably long time. So much so that it defeats the very purpose of the verdict at times. Ever wondered what's the cause of that ? Any person who has read extensively regarding this issue will understand that this happens mainly due to shortage of Courts vis - a -vis a relative docket explosion. While the rate at which litigation are being initiated have gone up substantially, the number of Courts and Judges to decide them haven't seen a proportional increase. It is essential for us to know that there is something called the Judge - Population ratio. It denotes the number of judges per million (ten lakh) people in a country. In the USA they have ten times more judges per million people, than in India. The Indian Law Commission in its 120th Report recommended that the strength of judges per million population should be increased from 10.5 to 50 judges. The present judge strength in India is 14 judges per million (ten lakh) population (approx.). From these figures it is not difficult to understand the cause behind the present alarming rate of pendency of cases. With regard to subordinate judiciary, the Supreme Court had, in its judgement of 21st March, 2002, in All India Judges’ Association & Ors Vs. Union of India & Ors., also directed that increase in the Judge strength from 10.5 per 10 lakh people to 50 judges per 10 lakh people should be effected and implemented within a period of five years in a phased manner to be determined and directed by the Union Ministry of Law.  Clearly the concerned Ministry has not lived up to the task. And the blame for large pendency of cases unfortunately goes to the judiciary.


 Now the budget. Ever wondered who controls the expenditure for building judicial infrastructure in the country ? Of course the Govt. You'll be surprised to know that less than 1 % is allocated to the judiciary in the State and Central Budget every year. In the Ninth Five year plan the Govt. set aside Rs 385 Crore for the judiciary and that works out to about 0.078 % of total expenditure plan. In the Tenth Five Year Plan, the allocation though increased to Rs 700 Crore, it still works out to a shocking 0.071 % of total plan expenditure. Its a complete mockery that the very institution which is often quoted as the last hope for the exploited and the injured, is so neglected. One of my friends recently pointed out to me his utter wonder, after becoming aware of these figures, at as to how the judiciary functions at all.

Despite all these hurdles, judiciary is not sitting quietly. Under the directives of the Hon'ble Supreme Court several Courts in different States are functioning as 'Evening Courts', beyond the normal day time functioning of Courts. Where focus is being put on taking up for hearing many old cases which are pending adjudication. More to this multiple drives are being regularly conducted by way of District Level, and State Level Lok Adalats where the Courts are taking extra steps to cause the parties to amicably settle their cases without further litigation. These steps are yielding quite promising results. But considering the mountain pendency figures, these efforts are unable to bring about any substantial change therein, for the public to realize that such endeavours are being made in the first place. After all there is a human limit to which Judges can give their efforts in disposing of so many cases. 

It has been further pointed out in the relevant write up, that a rich man can go to some foreign country under some false pretext while his lawyer keeps making appearances for him and on the other hand a poor man has no such liberty. I humbly need to dispute this statement as a misinformed generalization of the state of affairs. It is the law of this land that no person ought to be ordinarily forced to attend the Court proceeding, if his presence somewhere else is necessary, unless his attendance is really indispensable for such proceeding. e.g. in a hit and run case the witnesses need to identify the accused hence on each date of evidence the accused must be present even though he's on bail. But in a cheque bounce case, the evidence is mainly in form of documents, hence the parties can appear through their lawyer. Similarly in civil cases there is barely any need for the parties to personally appear on each and every date unless the proceeding demands so. Hence unlike what has been said,  a poor person too can appear through his lawyer, one appointed by him or by the State.

She has further, in her article, very rightly doubted the concept of true justice as a mere facade. It’s mainly because of the popular perception that law serves the interests of only the powerful and the privileged, while the un privileged suffer despite all the protection purported to be guaranteed to them by it. The anger is fixated on the high and the mighty who appear to be immune to the rigours of law. I'm afraid the cause of this anomaly is much complex, fundamental to our legal system than a mere allegation that justice is on sale for the rich and powerful. One must understand a country's judiciary is as potent and efficient as are it's a) Investigative Agencies and b) Witnesses. We have countless examples where witnesses have faltered in Court. If one goes and sees for himself, he is likely to discover several witnesses simply testifying before the Courts that they know nothing about the incident. Whereas they have given full statements before the investigating officer regarding their knowledge of the occurrence. So it's either the Police or the witness who lies. But in either scenario the Court is rendered with no other option but to set free the accused.

It has been lamented in the article that "Justice in this country can be cheaply bought or easily abused." It's necessary to know certain facts about the process of litigation before we judge the truth of that belief.

The law is set into motion when an FIR / complaint is registered by the Police.

The Police then goes to do investigation. During investigation it collects proofs, statements of witnesses etc that indicate the commission of the alleged offence.

Then on the combined basis of the complaint and the investigation it arraigns the suspects as accused persons and forwards them to the nearest Court of law, or

The Police then submits a final report ( in case it doesn't get any clue or evidence of the crime ) or in other cases submits charge sheet alongwith other documents.

If final report is submitted, the complainant can protest against it and pray to the Court to still take cognizance (proceeding with) of the offences despite the Police's final report. If the Court doesn't then the case is closed ( & the victim can appeal to higher Courts), but if it does listen to the complainant then it conducts its own inquiry and proceeds likewise.

When the accused is brought before the Couirt or he himself appears before it, the allegations are read over and explained to the him and he's asked whether he admits his guilt or not.

If he does then the Judge decides his punishment, but if he doesn't then trial commences.

The Court then summons the witnesses named by the Poilice who had stated during the investigations about to the guilt of the accused.

 Now depending upon the dimensions of a particular case, various categories of documents, witnesses, expert witnesses etc. are summoned by the Court for ultimate analysis of the truth.

After this process is over, the accused is given an opportunity to adduce evidence in his favour to rebut the prosecution evidence. Ultimately after hearing the final arguments the judge pronounces his judgment.

Now you think for yourself, as to how many different persons have a role to play in deciding the fate of a case. Police, witnesses, scientific experts, documents etc. Unless each of them is pristine and honest in his task, truth is bound to remain buried. 

Therefore the next time when one thinks that a Court has set free a guilty, or that justice has been cheaply bartered, think again, what actually was bartered. It was some witness who got scared or got greedy and decided not to tell the truth to the Court. Or the investigating officer who coerced someone to lie. The Court is not powerless in such situations, but the witness harassed must complain of the same to it.

The article also states that "we have judges.. with exceptions ofcourse, who have bartered their integrity for immoral and unethical benefits". Such a statement is likely to give an impression as if judges getting exposed for their corruption is an everyday affair. Now we all know that is not true. There are allegations but very sporadic.  Even if we assume that they do, a corrupt decision making process by a Court ultimately is of no real benefit to the person who seeks to gain from it, since the suffering party can always get that Court's decision overruled in appeal. 

The concerned article cites a sad example of a pregnant woman Kshama Chopra was killed when a BMW rammed the car she was travelling in. The accused was granted bail by submitting a bond of Rs 50,000. Bail has nothing to do with punishment. Therefore it's wrong to compare the value of life of a person with the surety / bail amount as it is only a security for his attendance in Court. If he dodges the law then not only that amount will be forfeited but also the Court can issue non bailable warrant against him and if he still doesn't appear then it can attach and sell off his property and compensate the victim, subject ofcourse to the proper law in this context. Unfortunately it's the law that has been written like that. In a hit and run case, the accused is most likely arraigned under Sections 279, 336, 337 or 304 A of IPC. Sadly all these sections are bailable offences. Hence the Court is bound to let off the accused on bail. It cannot set a large sum of money as bail amount since that'd be indirectly creating hardship for him to get bail in a bailable case. However regarding Kshama Chopra's case, I could opine better if I could know under what sections of law the accused was charged.

The article has doubted the independence of judiciary in view of the Kasab's case. Please remember that the independence of judiciary is always measured in its decision making process not in execution of its orders. Since technically, execution of it's orders is the duty of the executive. Furthermore it is indeed unfortunate and unfair to doubt the independence of our judiciary especially after it's relentless vigilance and vindication of public interest in the 2G scam and after exempting Vodafone from crores of rupees of tax payment to our Govt or sending SITs hunting for the corrupt and the wrong . Though I've a lot to say about the Kasab's case I humbly refrain from doing so since the highest Court of our land is seized with it's adjudication. There will be a time for my view on it and I'll surely give it then in retrosepct.

As far as the Judges of the Supreme Court, High Courts and other subordinate Courts are concerned I'm nobody to vouch for their integrity. All I can tell you that as subjects of constant public scrutiny, judges accept tremendous personal restrictions in their lives, that is often viewed as burdensome by the ordinary citizen and they do so freely and willingly. They do not socialize as much as they wish to. Their whole life is spent avoiding places that shimmer with frolic and glamour. Restraint is an everyday indulgence. That's the cost they pay for they respect and authority they command in Courts. Taking stray examples of deviation and generalizing judges as hypocrites and arrogant is extremely sad. I've known judges, now retired, who have lived their life under so much financial difficulty, yet with their head held high due to the restraint and exemplary code of ethics that they practiced in their lives and in their profession. A simple tete - e tete' with them will leave you awestruck and in reverence of their wisdom. Let's not forget what the Courts of this country have done for us and our fundamental rights after independence. When there was widespread onslaught on cherished liberties by those drunk with power. Since I've pointed out the real source which could alter the fundamental problem of delay in case disposal, it wouldn't be out of context to remind ourselves that the Courts have and always will vindicate the stand of the common man. Despite all the discussed follies, judiciary remains the common man's last hope. No matter how much we criticize the judiciary, we'll still run to it when we face attack against our freedom, person, family or property, because deep down we know that things won't be the same there as they were in some other office or forum.

This article should not be construed as one written in an argumentative tenor against what has been written by my fellow blogger in her article "Justice in Jeopardy, rather it should be read as one written by an ardent believer in the goodness and fairness of our judicial system and a student of law who has a little first hand experience of the legal system.  

For related discussions read

The Conversation - II ((On Law & Justice ....)

The Conversation - III (On free speech, media trial & prejudice ) and

(On delays in justice, revelations about judicial process & more on free speech, role of media & prejudice... + A must watch Video)


WISH YOU A PROMISING AND HOPE INSPIRING 65TH INDEPENDENCE DAY.