The people's expectation is that there will be quick and reliable justice available to all, wrongdoers and criminals will be punished effectively and also that innocent people will not be harassed by the judicial system. In short, the judiciary is expected to 'uphold the rule of law' in all its dimensions – provide swift and reliable justice, supervise and keep a tight leash on all institutions and agencies connected with the judicial process so that they contribute to meeting the ends of justice in an expeditious and reliable manner with integrity. In the following paragraphs, it will be analysed as to how well this task is being performed.
Justice Delayed Is Justice Denied – the wheels grind too slowly, and not so surely . . .
Sometime in late 2008, it was reported that more than forty-eight thousand cases were pending in the Supreme Court, and over thirty-eight lakhs in the various high courts. One can imagine the number of criminal and civil cases pending in the various lower judicial formations all over the country, which must be running into crores. We also need to add the number of revenue cases relating to land disputes in a predominantly agricultural country, where the litigants are primarily farmers. This would swell the numbers even further. Anecdotal information indicates that nearly every rural family in many parts of India is involved in at least one land-related litigation. Due to the pressure generated by high population and increasingly smaller per-capita agricultural land availability, people from rural India come out to urban areas in large numbers in search of employment, most of them finding low-paid menial jobs. Much of their meagre, hard-earned earning goes to meet the costs of litigation in tehsil and district courts, to meet the never-ending thirst of rapacious local police and civil officials as well as lawyers. Certainly, justice has not been done to a large number of Indians.
Each person will have at least ten stories of unending legal engagements and never-ending legal processes to relate. Every day's newspaper in every local area will carry a dozen references to criminal acts or commencement of court proceedings or the like; they drop out of headlines very soon, to go into limbo. It appears as though the only thing that matters is the lodging of a First Information Report (FIR) or filing of a chargesheet or commencement of a case; that is apparently the end of the story. If one looks back anecdotally at random, at some of the recent cases that hit the headlines, it will make interesting reading. The famous BMW case, involving hit and run deaths in Delhi in late 1990s, is still in the courts at some stage or the other. After the first verdict is over, it will make the appellate rounds, presumably for more years. After the 1992 riots in Mumbai, the 'fast track court' in Mumbai ended in many acquittals, and some convictions – many of the convictions were for one year rigorous imprisonment (RI) along with a fine of about three thousand rupees. All these pronouncements were made sixteen years after the event, in mid-2008. Presumably there will be appeals, which one can expect will go on for the next ten years or more.
It was mentioned prominently in various newspapers in November 2008 that in the 'bitumen' case of Bihar, where the FIR was lodged two decades back, finally the chargesheet had been filed against the then minister, then secretary-level Indian Administrative Service (IAS) officer, and 'ten' others – yes, the chargesheet had been filed! One can only speculate as to how long the trial will go on for, whether there will be any appeals, and at the end of all the processes, how many of the accused will actually be alive. Clearly, some people out of the ones against whom the chargesheet was filed would have retired from public service by then. Without knowing any facts of the case, and without commenting on guilt or otherwise of anyone charge-sheeted, one can speculate that some, or many, or all the accused could possibly be acquitted at the end of it all. Imagine the physical, mental and financial burden that such people carry for twenty or more years of their lives. It is reasonably certain that one can multiply such situations at least one lakh times in different parts of India. By contrast, there was a person by the name Maninder Pal Singh Kohli, who was accused of raping and killing a British teenager, Hannah Foster, in 2003. He absconded, ran away to India and was finally caught and repatriated to the United Kingdom (UK) to stand trial by mid-2007. By mid-2008, he was convicted to life imprisonment. One has also read of the case of the Sikh in Arizona, United States of America (USA), who in the immediate aftermath of the 9/11 terror attacks in the USA, was attacked and killed by a local American citizen, presumably in frenetic anger. When found guilty, the accused was convicted within nine months and sentenced to the maximum permissible term.
Every reader can recall at least ten or twenty such instances where cases go on interminably. Just to give only one illustration, in the infamous Tandoor case, there was jubilation that ultimately 'law prevails', when the accused Manu Sharma was sentenced to death. While it is heartening that he got his just desserts, one should also note that the verdict came nearly ten years after the event. Some circumstances, under which the verdict was given, are also worth recounting. The conviction hinged almost exclusively on the evidence tendered by one police constable who stumbled on the scene while the body of the murdered victim was in the process of being burnt by the accused. This was essentially the single piece of testimony that led to the conviction, apart from the routine forensic details. One can imagine the blandishments and temptations to which this police official would have been subjected to, change his testimony or to get him declared as a hostile witness, particularly considering how wealthy and influential the accused was. In that long span of about ten years, the sole witness could have had a heart attack, or been run over by a bus, become a victim of a terror blast, or even been 'done away with' by influential friends of the accused. It is clearly a miracle of sorts that the witness lived on for many years, and was courageous enough to exhibit honesty of a high order to secure the conviction.
It is almost as if the unspoken legal dictum is that like good wine, 'evidence improves with age'. In a country where witnesses are highly unreliable in many cases, where witnesses can be won over or influenced by various means, where unscrupulous lawyers abound who think nothing of suborning witnesses, where documents can be pilfered, altered, tampered with or merely be made to 'disappear' with time, where eyewitness accounts change in a startling manner even in the most obvious cases, the legal system shows little urgency or hurry to reach a conclusive stage in proceedings.
The Preparation for Trial – which side is the bread buttered? . . .
Usually, major delays take place at the investigation stage. Those who have a wide experience of the situation in rural areas know how that the FIR is the starting point for a lucrative new game to interest thana level police officials, with rapid participation of local level petty 'politicians' and other busy-bodies. Sometimes even the act of getting the FIR lodged is a major project in itself. In many instances, after the FIR is lodged, a bidding process starts, and its outcome determines who is to be shown as the victim and who the accused – officially. This is a long drawn-out process with much opportunity for various people to jump in, either for political or monetary gains. Anyone familiar with district politics would know that it is the norm that in 'important' cases, there is intervention by district or state level politicians, when the 'facts' are suitably 'adjusted'. After appropriate time dealing into such opportunities at the investigative stage, a period ranging from one to five years to settle the details to the 'satisfaction' of all concerned locally, the case would move to the prosecution phase, where the assistant public prosecutor (APP) or the public prosecutor (PP) would take charge of further proceedings.
A whole new game starts here, where all the facts of the case are given a thorough second look, and 'adjusted' as required, before the case is filed in the court. This again provides another window of opportunity for interested parties to jump in and deal with the facts and circumstances and twist them in an appropriate manner. Witnesses and depositions are suitably reviewed, amended and adjusted, depending on the financial and political influence brought to bear at this level. The lawyer also be
comes an important player for the accused at this stage, who stakes his own claim to ensure that not only are the facts re-aligned to his satisfaction but also to ensure that every aspect of the progress of the case is delayed to the extent feasible. During all this time, there will be opportunities to tamper with key evidential papers, or even to get them 'lost'. Political factors also can and do intervene in this phase, which again can take one to five years or more, before the case is actively taken up by the court.
It may not be prudent to comment on the goings-on after the court takes the case on board, for obvious reasons. However, the ones who are familiar with local matters at the level of district courts could be consulted for anecdotal information on what happens in this phase. Usually they would give a piece of their minds in private conversations only. There was the recent report of Transparency International—the global organisation to lead an anti-corruption campaign—that corruption in the lower judiciary in India is at high levels, computed by them at about Rs 25,000 crores per annum – I do wonder if this is an understatement. A 'competent' defence lawyer's main objective is to postpone or delay the commencement of the trial – depending on his sagacity – to the extent to which the presiding officer is willing to play ball with him; adjournments are sought for one reason or the other. It is anybody's guess as to how long the proceedings will go on for, and when a verdict will be passed. In the meantime, the magistrate or judge hearing the case may get transferred, giving another opportunity to start the process all over again.
That may not be the end of the story. There are appellate avenues left, which are fully explored and exploited. Indeed it is a miracle that through all these leaking sieves, a conviction is finally achieved, and 'justice is done'.
Adjournments – all are happy except the litigant!
The lack of coordination between the investigative, prosecuting and trial authorities also leads to many adjournments and postponements. Litigation in India is already an extremely expensive proposition for the citizens involved. The problem is hugely compounded by frequent, sometimes innumerable adjournments, which in many instances may be uncalled for. Naturally such adjournments suit the defence attorneys, as well as the prosecutors who charge on a per-appearance basis. Surely the judicial system is not run solely for the benefit, convenience and profit of the lawyer community – its primary aim is to provide justice at a reasonable cost. Endemic delays contribute to interminable trials at the initial stages, and the phenomenon frequently continues at the appellate stages. Many guidelines exist from superior courts that an adjournment should not be granted routinely and may be given for very special reasons only. However, looking at all levels of work in courts, adjournments are often norms; speedy disposal is frequently the exception. It is almost as if the bench is unwilling or unable to displease the lawyers on both sides – interest of the litigant is of little concern. Determined steps to address this issue will lead to immense benefit to the litigant public. Apart from proper use of technology, as has been referred to elsewhere, courts could consider planning hearings well in advance, giving three or four months' notice to parties, making sure that pretrial technical issues are sorted out through innovative mechanisms. Coming up with day-to-day hearings will be highly beneficial in most of the cases. A concerted move to bring down the total time period in the trial phase would be a boon to the litigants in India.
Supervision over Investigation and Prosecution Processes – only by the beneficiaries? . . .
In general, the judicial system treats as its jurisdiction or duty, merely to get the trial of the case conducted. The delays and the shenanigans during the course of the investigative or pre-trial prosecution phases are not supervised by any authority. The judiciary, in most of the cases, does not consider it as part of their mandate. Occasionally there is mild or harsh criticism on the quality of investigation or on lapses in prosecution – such censorious comments, mild or otherwise are usually brushed aside by the investigative or prosecution apparatus. Who is to ensure that the investigation and prosecution are conducted efficiently, competently, timely and with maximum possibility of leading to legitimate conviction? In general, the courts have abdicated this responsibility; they do not consider it to be their business at all. They consider that it is in the province of the state to ensure efficiency, efficacy and probity in these matters.
Such was the case back in the sixties. Till that period, there was no 'separation' of judiciary and executive at the lower levels. Indeed the judicial officers at the district level were under the control and superintendence of the district magistrate (DM). The superintendent of police (SP) in each district would take much care in reviewing, monitoring, overseeing and inspecting the progress of cases of investigation and prosecution. The DMs would also, in their weekly and monthly reviews, broadly supervise and review the process of investigation and prosecution, as well as trial periods of cases pending with the judicial magistracy. With the 'separation', the SPs and DMs started having nothing to do with the process of reviewing the quality of investigation and prosecution; the judiciary did not explicitly or implicitly assume responsibility for such supervision. Suddenly, the process of investigation, which is the most important element in building up a criminal case, was in no man's land, with no formal machinery for ensuring quality. Similar was the case with respect to prosecution. This is a colossal act of omission by all concerned, and has led to the current generally disgraceful, inefficient and corrupt investigation standards, and unchecked dilution in quality of prosecution.
Who is to be blamed for this? Probably both the executive and the judiciary, for not recognising this as a key policy issue, and putting a formal supervision mechanism in place at the time when 'separation' was ended in the '60s. However, in a larger frame, it appears that the judiciary has deliberately defined the noble mandate given to it by the Constitution to be restricted to the court process, and not to interpret it in the spirit intended by the founding fathers. The Constitution does not merely demand a 'fair trial' or 'due process'; it enjoins the judiciary to ensure that 'justice', in all that it implies, is provided to the citizens. That ought to include the investigation and the prosecution phases. Overall supervision over quality and probity at these levels is squarely within the province and responsibility of the judiciary. A change in attitude and approach in this regard by them is essential.
Like nearly every system and process in our democracy, the judicial process is also heavily tilted in favour of the rich. Thus in case after case, the richer protagonist has the stamina to fight a long-drawn battle over decades – his poor adversary gets knocked out fairly early in the process. These are expensive games played by the lawyer community, under the direct eye of the honourable court, and at the expense of the poor litigant. Harish Salve, a senior Supreme Court lawyer, who has also held a senior position in the government, did not mince words in a television appearance when he categorically referred to the 'collapse of the judicial system' in India.
As has been argued, the judicial system, from the apex courts downward, has narrowly interpreted its mandate as limited to presiding over the trial process of cases appearing before them and disposing them off on merits, on a case by case basis. Surely, what was envisaged was that they should establish clear guidelines, respected not just by the entire judiciary but by all the attendant institutions and organisations, including the investigative and the prosecution apparatus, as well as the lawyer community, with the sole purpose of ensuring expeditious provision of justice. The system to be established by the judiciary will also specify the checks and counterchecks, with strict timelines to ensure compliance and lay down a system of monitoring full and total compliance, in letter and spirit. If the above is done, and only then, perhaps we may move to a situation of justice being provided to the citizenry, as envisaged by the Constitution.
Do Lawyers Get Away With 'Blue Murder'? – the 'criminal' lawyer…
Many readers may have seen the sting exposure on NDTV, regarding the goings-on in
the so called BMW case, showing both the public prosecutor and defence attorney in dubious light. For the uninitiated, the case was related to an event that took place about ten years back, when a BMW car driven by some young men belonging to wealthy families, ran over and killed some people sleeping on the pavement of a Delhi road in the middle of the night. (Yes, indeed it was ten years back.) Apparently, in India, the longer the delay after the event, the easier to get to the bottom of the case! There were not many witnesses, and one person by the name Sanjeev Kulkarni, who claimed to be the main eyewitness, was originally, for whatever reasons, not brought on the witness stand by the prosecution. Be that as it may, the NDTV sting operation showed both the defence attorney (a famous lawyer, also a prominent politician), and the public prosecutor (another famous lawyer who interestingly accepted the task of bringing the criminals to book for a 'token' fee of Re 1!), apparently hobnobbing with the key witness. The public prosecutor was shown on candid camera banteringly offering 'Blue Label' scotch to the witness, while the defence attorney was shown having clandestine meetings with the same witness and in conversation with him with great familiarity. There was a brief furor in many circles, since the lawyer community was seen in poor light. In one of the hour-long TV programmes where I was a guest, K. Manan, the then chairman of the Delhi Bar Council had promised 'most stringent action'. I had surmised on air in the same TV programme, without going into the facts, that it would only be a matter of time before 'whitewash' would be applied and that the two concerned lawyers would go scot-free. I learnt after a couple of months, that after a brief period of suspension, the Bar Council had revoked the same, and the two distinguished attorneys were allowed to continue to ply their trade. I still do not know the true facts of the case and have no firm opinion whether the attorneys committed any improper or unsavory act; all I know is the impression I received of both defence and prosecuting attorneys having bantering, friendly, apparently suspicious-looking conversations with a key witness in a criminal case. Perhaps law, as practised in India, has different moral and ethical codes; witnesses can freely be influenced, or even be suborned. I would certainly find it interesting to know the reasons as to why the two lawyers' suspension was revoked by the Bar Council.
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