A wag recently suggested his version of judicial reforms to reflect current reality. He recommended three sets of laws—one for the super-rich, including politicians and actors, one for the very poor, and one finally for the citizen. Last week, one saw a surfeit of competitive inane trivia relating to the Salman Khan case; the delay was treated as normal and didn’t receive much mention. D P Yadav, the Uttar Pradesh politician, was convicted in 2015 for a murder committed in 1992—for 23 years, he was permitted to terrorise and subjucate citizens in two states. Lalu Prasad is permitted to play his brand of politics in Bihar despite dozens of cases pending over decades. Masarat Alam has at least 27 cases pending against him. A Tihar Jail ex-superintendent mentioned the other day that about 75 per cent of the inmates are ‘under-trials’—many of them for more than 10 years. (If the poor accused has no money, his Indian condition today was well described by Charles Dickens 150 years ago).
The Satyam scam, ranking among the worst corporate frauds ever, could draw a total of seven years in prison to the main accused. The judgment was delivered after seven years of trial, one year after completion of the hearing— after all accused had fully confessed, and three top-class expert reports, uncontested, bringing out all the features within the first six months. Imagine these cases being tried in the US or Europe or China—are we serious about deterrence? Rajat Gupta got five years for a 15-second phone conversation—in all probability that case would have been laughed out of court by a clever lawyer in India. Haven’t Indian courts heard of ‘consecutive’ sentences? Is the whole system about combining sympathy with token punishment? The victim’s fate is of no consequence. In all the above cases, it did not require rocket science to reach a decision with available facts. Shouldn’t we ponder why these cases didn’t conclude within one year? Whether the quality of evidence improved over time? Whether it afforded every possibility to the accused to get away—and how many others actually get away!
In many thanas, FIRs are auctioned regularly. The accused and the victim play musical chairs, as to who will face the music. The forensic laboratories of various colours, dealing with different types of crimes, are ill-equipped, corrupt and highly influenceable. The criminal investigation departments of state governments are highly politicised and are thoroughly inept. The prosecution wings in the district and high courts are under nobody’s check and are abysmally weak. If the revenue cases take decades to settle, the position of civil suits is worse. The situation is crying for reform.
One has the highest faith and respect for the higher judiciary; they deserve the gratitude of the whole country for saving the citizen on times without number. Have they, however, failed in their duty to ‘administer’ justice? Have they supervised the lower formations? Will they continuously be only referees and umpires, for others to plead before them? Do they not have original responsibility for management of ‘justice’ to the people? Who is responsible for delivering this basic right to the citizen—the Parliament, the Prime Minister or the Chief Justice? Who is coordinating the operations of the overall judicial machine, including the investigation, prosecution and trial phases, taken as a totality? Is it not necessary for the higher judiciary to lay down the norms and guidelines, and to ensure monitoring, supervision and direction (without interfering with quality and impartiality)? Is it not necessary now to have a machinery in place, which credibly examines delays at all levels, and pulls up delinquents?
Who is there keeping a watchful eye on necessity of adjournments, needless and repeated interlocutory applications and processes, generosity in giving long leeway to counsellors; generally ensuring that the lower formations know all the time that somebody is watching with a critical eye? To state it mildly, many lower courts, sometimes one even hesitates to talk of high courts, have unsavoury reputations—who is there watching over it with a censorious eye? Why should there be shortage of judges or court-rooms—surely such expenditure will not sink the nation’s economy? Why is technology not being inducted appropriately, as in other parts of the world? Why should we continue to be in the Macaulay era?
At various annual seminars at high levels, crocodile tears are shed regularly and homilies on “justice delayed is justice denied” are delivered. In TV programmes, none shed tears more copiously than the senior-most lawyers, who themselves are the architects of imaginative shenanigans and masters of filibuster. The most respected institution in this country is the higher judiciary; the public holds it in even higher esteem than our armed forces. While its impartial umpiring/refereeing role will have to continue, it would also have to administer—be a player—to wield the stick, set the norms, and ensure compliance down the line, without loss to neutrality and fair play; surely this is not too much to ask. If it is unable to do so, there ought to be no vacuum—a suitably designated authority, to be created if required, needs to fill this important policy gap. tsrsubramanian@gmail.com
Subramanian is a former Cabinet Secretary