There are many broad statements made about the judicial system in India every time there is a high-profile case doing the rounds in the news. It has been a topic of discussion on numerous occasions on the news media and has even been the subject in many movies too. While no one is under any illusion about the often deplorable state of deliverance of justice in India, statements are seldom backed by solid numbers. By the end of 2016, we may be crossing the mark of 10 million pending cases. Shortage of judges, archaic and pedantic procedural laws (in this context, the provision of ‘recall application’ under Order 9 Rule 9 and Order 9 Rule 13 of the Code of Civil Procedure is often misused), dragging of cases by lawyers for monetary benefits and occasionally, even interference of political parties are just a few of many reasons that often result in the delay of justice being served by the courts.
The state of Uttar Pradesh tops this list on many counts (though the performance of BJP-ruled Gujarat, for example, isn’t much better, where at least until 2011, the courts were using MS DOS!). As of December 2015, not only did UP rank high in the number of cases pending in its domestic courts (which includes over 2.02 lakh civil suits and over 370 thousand criminal cases), it was also the state with the highest number of cases pending for 10 years or above, highlighting the extreme lethargy of its legal setup. What should also be kept in mind is that in a state like UP with its numerous small districts and sub-districts may also have many cases that never reached the registers of any court or police records. To add to that, the extreme proximity of the political class with the criminal class in an unofficial nexus of sorts, it then comes as no surprise that the state of Uttar Pradesh has a perpetually flawed record when it comes to delivering timely justice.
|Jammu and Kashmir||5,373|
|Andaman and Nicobar||677|
Source: http://www.business-standard.com/article/specials/2-million-cases-await-justice-for-decade-or-more-115120300667_1.html (the report dates to December 2015)
But even if we were to overlook all the corruption and the political hindrances in the legal system and were to assume that all legal proceedings go on as they are supposed to, that would still leave us with a problem of a massive backlog of cases. Due to the high poverty rates in states like Uttar Pradesh and Bihar, there are many people who are caught for petty crimes, people who don’t really have the means to afford any kind of legal assistance and are reliant entirely on the justice system for their fate.
According to a Law Commission report of 1987, a recommendation of 50 judges for a million people was considered as a requisite for fair and timely deliverance of justice, but as things stand, we have an availability of 10.5 judges for a million people, a number no way close to what it should be. Now in this case, many of the aforementioned cases get relegated to the extreme bottom of the priority list and in many cases, the accused end up spending more time in jail waiting for a trial than they would have if they were convicted in time, and one can only imagine the mental state of those accused in case of acquittals.
In the light of this situation, many suggestions have been floated over the years to deal with the problem of backlogs in courts. In the same report by the Law Commission, it had suggested holding of courts in jails by every Chief Metropolitan Magistrate or Judicial Magistrate of the area where the jail falls in, for under-trial prisoners locked up for petty offences. This was done to speed up the trial procedures for all the prisoners who are willing to confess their crimes or who have already gone through more jail-time than they would have if they were convicted at the time of committing the offence.
In 2009, the then Law Minister of India, Veerappa Moily had purported a vision statement, which included many steps to speed up court proceedings, including appointing 15,000 retired trial court judges and 700 high court judges on a contractual basis adjudicating matters in shifts ranging up to midnight. While a great roadmap on paper, it never got to see the light of day under the UPA regime and now just languishes in the files.
Speaking of midnight shifts, a similar experiment was conducted by the Gujarat State Government in compliance with the State High Court which introduced the concept of evening courts, wherein the officials in many of Gujarat’s district courts worked extra shifts and many hearings were also done in the evening court, providing more time for court proceedings and an added convenience to many complainants who were relieved at the prospect of not taking a day off from their work in order to attend a court hearing. While the method was welcomed by the public and the officials alike, its effect didn’t result in any long-term reform throughout the country or unfortunately even the entire state of Gujarat.
A judge in a lower court in Uttar Pradesh, who refused to be named, told me that the steps that have been taken for fast disposal of cases are also counterproductive to the proper administration of justice. He was basically referring to a “quota system” whereby a specific number of days are allocated to settle a case of a certain variety, failing which it adversely reflects in the confidential report. This system overlooks the quality of the judgment or the nuances of facts and law, and so, judges take up the easy cases to dispose those off fast, with others still remaining pending. The focus instead, he insists, should actually be on having more judges.
Major initiatives in the sphere of judicial reforms and police reforms needed to have a strong rule of law, which is a prerequisite for economic development. Gurcharan Das has forcefully contended in his book India Grows At Night: A Liberal Case for a Strong State that police reforms and judicial reforms and putting in place a sound public infrastructure is more important than what are commonly known as “economic reforms”, pertaining to easing regulatory controls.
Corruption is obviously a very major obstacle towards the true flourishing of free markets, for capitalism comes to be replaced by crony capitalism, and if the judicial system itself were to be infested by this epidemic, then that even makes things worse. Many a time, questions have been raised over the integrity of the judges of the Allahabad High Court, not to speak of the lower courts in UP. In this regard, that Chief Minister Akhilesh Yadav tried to handpick the Lokayukta of Uttar Pradesh ignoring what the Chief Justice of the High Court had to say, until before the Supreme Court intervened from a list that initially included the names of 30 dead judges is indeed a shame. However, at least on the face of it, it was indeed heartening to note that Yadav had written a letter to Prime Minister Narendra Modi for more funds for judicial administration back in June 2015 in line with the recommendations of the 14th Finance Commission.
However, the judge in Uttar Pradesh I spoke to also emphatically pointed out that baseless allegations of corruption can lead to judges of lower courts being suspended for months together, which is why they are reluctant to confer bail, leading to all such applications going in appeal to the High Court. He also complained of the interference of the High Court, putting stays on orders by lower court judges, and the likes, without any substantial reasoning. The Supreme Court may have rejected the proposed NJAC, but it must do more to reform the High Courts, and the government implementing the excellent idea of an Indian Judicial Service on the lines of the civil services can indeed definitely do much to attract more talented individuals.
For our democracy to succeed, the ruling governments of the day must sense pressure from the populace for such reforms, and that, in the context of Uttar Pradesh, would also have to involve thinking on modern lines of the individual as a citizen, rather than seeing oneself through the prism of caste or religious identities, which is necessary for the rule of law and for politics based on incisive public policy issues. The change can come about in the approach of political parties only if they feel the electorate would certainly respond to a new policy-oriented approach better.
If anyone believes that the BJP is a “party with a difference”, one is sadly mistaken, given the criminal charges against so many BJP MPs and MLAs across India, including Sakshi Maharaj and that goon Vitthalbhai Radadia. Or how the BJP actually used a dacoit to threaten people to vote for them in the Chitrakoot constituency in Satna in the elections in 2014. One can’t expect a party with criminal elements like the BJP or the SP to institute large-scale judicial reforms or police reforms. The BSP could do so to an extent in UP, and at a later stage, the AAP.
With inputs from my friends Akash Arora and Suvankur Sukul.
(Image Courtesy: Wikimedia Commons)