The justice system in India is passing
through an extremely difficult period, for which there are a number of reasons.
Let us start with the basics, that is, the separation of powers. In this a very
special position is given to the Judiciary which makes it totally independent
of the Executive. This is most praiseworthy, but it would be futile to deny
that the system is under stress. As the Executive fails to perform its
functions of governing, as people develop a feeling that they cannot expect
fairness, impartiality and efficiency from the Executive, recourse to the
courts has increased substantially and in matters in which the Executive should
have taken a decision the Judiciary is being forced to intervene so that people
receive their due, especially in terms of delivery of services. Because it is
impossible to maintain an absolutely fine-tuned balance when one constituent of
the State is forced to order another, equal constituent to act in a particular
way or desist from acting in another way, there are bound to be complaints that
the Judiciary is intervening in executive matters. Looked at from the citizens’
point of view this is just fine because he is interested in his legitimate work
being done. That, however, is not how the Executive views it. There have also
been instances of clashes between the Judiciary and the Legislature, but
fortunately the stand-off has never reached the point of irreversible crisis.
However, the Executive must begin to govern and its lowliest functionary must
being to do his duty as mandated by law, rules or executive order. If that
happens people will find it unnecessary go to the Judiciary for remedy and
courts can then go back to their main function of deciding issues between
adversaries.
One of the areas of conflict
is in the appointment of judges of the Supreme Court and the High Courts.
Article 124 of the Constitution states how a judge of the Supreme Court may be
appointed. Article 217 provides for the appointment of High Court judges. The
operative part of Article 124 (2) reads, “Every judge of the Supreme Court
shall be appointed by the President by warrant under his hand and seal after
consultation with such of the judges of the Supreme Court and of the High
Courts in States as the President may deem necessary for the purpose and shall
hold office until he attains the age of sixty-five : Provided that in the case
of appointment of a judge other than the Chief Justice, the Chief Justice of
India shall always be consulted”. Under Article 217 for the appointment of a
judge of a High Court the President is the appointing authority and he is
required to decide on such appointment in consultation with the Chief Justice
of India, Governor of the State and, in the case of appointment of a judge
other than the Chief Justice, the Chief Justice of the High Court concerned”.
The Supreme Court has ruled that consultation with the Chief Justice of India
establishes the primacy of the Chief Justice in determining who shall or shall
not be appointed a judge of the Supreme Court or a High Court. The Supreme
Court has further ordered that it is a collegium of judges, to be selected by
the Chief Justice which will help the Chief Justice to determine what advice
should be rendered to the President regarding the appointment of a judge.
I have serious objection to
the concept of a collegium of judges which limits the power of the President to
consult such judges of the Supreme Court and the High Courts as he deems
necessary, which is what Article 124 (2) states. I do not think that the
Supreme Court can thus limit the authority of the President regarding
consultation which vests in him through the Constitution, though the Chief
Justice of India would be free to set up a collegium to advise him on the
recommendations to be made on consultation. The question still remains about
how a conflict will be resolved where the collegium advises the Chief Justice
in a particular way and the judges whom the President consults give some other
advice. The third player would be the Council of Ministers, whom the President
is bound to consult before taking a decision because under the Constitution he
is bound by the advice of the Council. This would apply to the Governor of a
State also who, when consulted by the President about appointment of a High
Court judge, would naturally have to abide by the advice given to him by his
Council. In other words, the present provisions of the Constitution and their
interpretation by the Supreme Court do leave open the gates of disagreement and
even conflict because whereas the President may not appoint a judge whom the
Chief Justice of India and the collegium have found unfit, he need not appoint
a person recommended by the Chief Justice. In fact many vacancies in the High
Courts and the Supreme Court have not been filled on account of such conflict.
Government has been trying to
set up a National Judicial Commission, to be headed by the Chief Justice of
India and with adequate representation of the Supreme Court and High Courts.
The Commission, as envisaged, would have the Law Minister, the Leader of the
Opposition of one of the two Houses of Parliament and an eminent jurist
nominated by the President as members. Justice J.S. Verma, Justice V.N. Khare,
Justice V.R. Krishna Iyer and Justice M.N. Venkatachalliah are all opposed to
the collegium system. Perhaps the issue could be resolved if the proposed
National Judicial Commission could have a majority of judicial members, with
the Chief Justice having a veto power and if the eminent jurist is nominated by
the Chief Justice of India rather than the President. Suitable constitutional
and legal arrangement could be made for the advice of the National Judicial
Commission being final, with neither the President nor the Prime Minister being
authorised to overrule it. Without bringing the Executive into the process for
the appointment of judges of the Supreme Court and High Courts, such an
arrangement would widen the scope of the required consultation with the Chief
Justice and by bringing the government, the opposition and the Bar on board
through an eminent jurist, the system of appointment of judges could be made
more broad based and more credible.
An independent judiciary is a
sine qua non of a true democracy. However, the only system of governance in which
authority does not go hand in hand with accountability is a dictatorship of the
type established by Hitler or Stalin. This means that the more independent the
judiciary the more should it be accountable. Accountability which does not lead
to penalty for failure to discharge accountability satisfactorily is no
accountability. Under Article 227 courts and tribunals located within the
jurisdiction of a High Court work under the superintendence of the High Court
and in exercise of the power of superintendence the High Court can call the
court or tribunal to account. Under Chapter 6 of Part VI of the Constitution
the District and Sessions Courts and the Courts of Magistrates and Civil Judges
are termed as subordinate courts and under Article 235 control over subordinate
courts vests fully in the High Courts. The Constitution, therefore, provides
for High Courts to decide how subordinate courts will function, to prescribe
measures to ensure accountability and to punish for failure to render account,
in terms of finance, efficiency, judicial competence, etc. But what about the
High Courts and the Supreme Court? Their judicial pronouncements are open to
appeal, revision and review, but administrative and personal conduct are not
subject to the superintendence, supervision or control of any judicial
authority. If a judge does little or no work, is not regular in attendance,
delays judicial pronouncements, does not promote efficient judicial process in
his own court or in subordinate courts the maximum that can happen is that
under Article 222, on the advice of the Chief Justice of India, the President
may transfer a judge from one High Court to another. If there is serious
misconduct the procedure laid down in Article 124 (4), it would be applicable.
For High Court judges Article 218 would apply, which means that a Supreme Court
or High Court judge can only be removed through impeachment proceedings. There
is no other penalty prescribed, but as the Justice Ramaswamy case has proved,
if equations in Parliament are such that the necessary majority cannot be
mustered, a judge found guilty of misconduct by a tribunal constituted under
Article 124 (4 and (5) the judge may still escape removal. Carried one step
further, if a judge is found guilty in a criminal trial, convicted and given a
jail sentence, the impeachment proceedings can still fail and the convict would
continue to be a judge of a High Court or the Supreme Court. This may happen in
the case of a lady judge of the Punjab and Haryana High Court who has been accused
of taking a bribe. Government, Parliament and the Supreme Court must realise
that what could never be dreamt of when the Constitution was drafted, that is,
a judge of a High Court or Supreme Court committing a criminal misdemeanor, can
no longer be ignored and, therefore, we must have a constitutional provision
whereby in such cases, while taking great care to ensure that the independence
of the judiciary is not thereby compromised, such a judge can be made to demit
office.
The major problem with our subordinate
courts from District and Sessions Courts down to a Magistrate First Class cum
Civil Judge Class Two is that cases drag on for years. Formerly civil
litigations were considered to be very lengthy and time consuming, but now
unfortunately even the criminal justice system has become subject to inordinate
delay. I have perhaps quoted this case else where, but it bears repetition. In
Mach 1983 shortly before I left the Service we trapped a lady who was trying to
bribe a Deputy Secretary. He had already reported that such an attempt was
being made and we arranged a trap, catching the lady red handed. My evidence
was proforma, but necessary because the bribe was being offered for expeditious
processing of a case in which the accused person’s application to me had been
forwarded by me to the Deputy Secretary for examination. It took eleven years
for my evidence to be recorded because every time I went for a hearing the
accused, by absence, by subterfuge, by downright lies was able to obtain
adjournments. The case was finally decided fifteen years after the event. What
is the deterrent effect of such proceedings? How can witnesses be expected to
remember an event which happened several years earlier and give testimony which
could withstand cross examination, the purpose of which is to discredit the
witness? This was a simple case with only three or four witnesses, but imagine
what happens in a serious case in which a heinous offence has been committed
and there are a large number of witnesses. No wonder we have such a miserable
record of convictions.
I have been trying to
understand why cases are delayed. I am not even attempting to look at civil
cases because that will require several volumes. In a criminal trial the first
delay occurs at the stage of investigation. The available clues may be either
so few as to be almost nonexistent, witnesses may not be available, the
forensic tests may be inconclusive, the investigating officer may be
overburdened and can give only limited time to a particular offence, the accused
and the witnesses or even the complainant may come to some compromise or there
could be sheer inefficiency. This is where superior police officers have a
major role to play to ensure that investigation is consistent, sustained and
done with intelligence. Forensic and other support must be made available
freely to the investigating team. The legal niceties of investigation must also
be taken care of. The submission of the challan must be accompanied by full
documentation so that the charge-sheet is complete in itself. This has to be
followed up by proper representation of the prosecution in court, with the
public prosecutor and his assistants applying due diligence to the case. If the
public prosecutor is wide awake and proactive many of the delays in court can
be avoided.
One reason for delay is in
the serving of process. The court moharrir, who would generally be from the
police, or the reader of the magistrate or judge, would be responsible for
issue of process which, in criminal cases, would generally be served by the
police. The arrangement is not satisfactory and most courts report that service
of process is tardy and very often summons and warrants are just not served in
collusion with the accused or the witnesses. Surely, with modern means of communications,
with speed post, courier service, SMS texting and the internet the High Courts
can work out a system whereby service of process becomes efficient and cannot
be used as an excuse for delay in court proceedings. Our courts cannot function
in the eighteenth century when the twenty-first century gives such exciting and
innovative means of communication, or are they waiting for that happy day when
science evolves a means of apparatus-less communication of thought process
whereby what the judge thinks is communicated to the witness or accused by a
para-psychic process? Coming to the trial proper, defence counsels are prone to
pleading for adjournments, especially in those cases where the defence case is
weak. Adjournments must be avoided because whereas an adjournment which is
unavoidable is given, in most cases adjournment is denied. It is for learned
counsel to adjust their cause list in such a way that appearance in one court
cannot be offered as an excuse for nonappearance in another court. There is no
reason for a judge to give an adjournment only for the sake of convenience of
counsel. Every defence counsel is an officer of the court and it is his duty to
assist the court in speedy disposal of a case. A counsel who acts otherwise
fails in his duty and should be treated as such.
I have talked to a number of
judges and magistrates about why they are not strict in the matter of
adjournment. Under Article 21 of the Constitution every person, including one
accused of a heinous offence, is still entitled to be tried by due process
before being deprived of his life or personal liberty. Under Article 22 a
person who is arrested and detained in custody has the right to be informed of
the grounds for arrest, he has the right to consult and be defended by a legal
practitioner and he cannot be detained in police custody beyond twenty-four
hours of arrest without the orders of a magistrate. Under Article 39 (A) every
citizen is entitled to equal justice. This is enforceable by the provisions of
Articles 139 and 226 which confer writ jurisdiction on the Supreme Court and
the High Courts. The Code of Criminal Procedure prescribes the process of trial
in criminal cases. Chapters XVI and XIX of Cr.P.C. state how proceedings shall
be conducted before a Magistrate and Chapter XVIII does the same for trial
before a court of session. Under sections 231 and 233 Cr.P.C. an accused person
has the right to cross examine the prosecution witnesses and to enter upon his
own defence and adduce evidence in this behalf. Suppose an accused person
deliberately delays the taking of evidence for the prosecution and indefinitely
defers his own defence. Should the court indulge him and go on giving
adjournments indefinitely, as happened in the bribery case to which I have
earlier referred? Under Indian law a person is deemed to be innocent till
proved guilty but there is no provision of law which says that an accused and
his counsel can go on creating obstruction so that the trial is indefinitely
delayed. In other words, an opportunity, a manifestly fair opportunity, must be
given to the accused on trial to present his case, but when the accused tries
to indefinitely delay the matter the court need not succumb. Under section 309
Cr.P.C. the provision is, “In every enquiry or trial the proceedings shall be
held as expeditiously as possible and, in particular, when the examination of
witnesses has once begun, the same shall be continued from day-to-day until all
the witnesses in attendance have been examined, unless the court finds the
adjournment of the same beyond the following day to be necessary for reasons to
be recorded”. The proviso to this section states that any trial relating to an
offence under section 376 and 376(D) of IPC (sexual offence amounting to rape)
must be completed within a period of two months from the date of commencement
of the examination of witnesses. The scheme of Cr.P.C. is very clear, the
accused is entitled to a fair trial, but he is not thereby entitled to
indefinite delay.
I have spoken to some judges
about why they so readily give adjournments. Even the most conscientious of
them state that if they do not give an adjournment there are many defence
lawyers who indulge in making complaints against the judge and, by and large,
the High Courts tend to be more sympathetic to defence counsel than to their
own judges. Rather than face such complaints many judges take the easy way out
and adjourn the case. One of the things which many judges have forgotten is
that bail is also a form of custody in which instead of physically holding the
accused the court permits enlargement on bail, whereby surety of appearance is
substituted for physical custody. If the accused person deliberately delays
proceedings by non appearance or such other tactics it would be legitimate for
the court to hold the person in physical custody and to proceed with the case
on a day-to-day basis. The Supreme Court and the High Courts must try and move
the courts in this direction. Greater adoption of evidence through video
conferencing and other means of electronic recording of evidence would also
help in expediting cases.
There are some recent
developments which are causing me worry. The first is that recent rape cases
have certainly shaken the nation, with the Chief Justice of India going as far
as to say that he would have personally liked to participate in the public
protest. Perhaps he was ill advised to make this statement because in a way he
thus pre judges even the specific case under mention, which means that no trial
court in India would hereafter readily acquit a person in such matters unless
no case at all is made out and this could lead to mistrial of rape cases and
denial of justice to the accused persons. We have seen a whole spate of very
speedy trials, some lasting only for ten days, in which the accused has been
sentenced to death. Murder, whether or not accompanied by rape, is the ultimate
crime because it irreversibly deprives a person of his life. The accused also
faces possible judicial termination of his life at the end of the trial and,
therefore, courts have to be extra careful to ensure that the accused has full
and fair opportunity to represent his or her case and that there is no
miscarriage of justice through haste. The Supreme Court and the High Courts for
years have ruled that there should be extreme caution in awarding the death
penalty and that, too, only in the rarest of rare cases. In sharp contrast in
at least half a dozen cases in the last two or three months rapists have been
awarded the death penalty after trials which smack of the summary. The
judiciary cannot swing between two extremes because our politicians, civil
servants and the so-called civil society are already doing this. Certainly the
judiciary should enforce the law with great strictness and there should be no misplaced
and pseudo philanthropic attitude towards crime. At the time same justice has
to be done because two principles of Anglo Saxon Jurisprudence that we follow
are :- (1) An accused is presumed to be innocent till proved guilty, with the
burden of proof of guilt resting on the prosecution. (2) It is better that a
hundred guilty people go free rather than that one innocent person be punished.
It is for the judiciary to ensure that the balance is maintained, the innocent
are protected and at the same time the guilty are brought to justice in the
shortest possible time.
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