In a shameful incident, RSS swayamsewaks were arrested by police in Guruvayur, Kerala on January 26th 2013 while they we..
Has India failed because of its Judicial System?

The protests in Delhi about the brutal gang rape of a 23 year
old girl are more than just a spontaneous outpouring of grief over
the victim. The citizens of this country are seething with rage
over a callous unresponsive government and judiciary.
They are no longer fooled by promises of action and statements such
as “law will take its course” or setting up of toothless judicial
commissions.
Let us consider some simple facts about the pathetic state of
affairs
Justice Delayed is Justice
Denied.
1. There is a backlog of 30 million cases in India. Even if no new
cases are filed, it will take about 350 years to dispose of them
all. If a common man gets cheated or assaulted or murdered his
family will have to move heaven and earth to get justice which will
ultimately be denied to them. This is true of cases where no high
profile individuals are involved.
2. Judgements in high profile cases like the fodder scam have still
not been received inspite of having a special court to deal with
the issue.
3. The term of the current LokSabha is nearing an end but the
electoral fraud case against the present Finance minister has just
commenced. It will probably be a decade before all the appeals are
finished.
4. Celebrities like Salman Khan have not appeared in court despite
being summoned 82 times. Does the Judiciary not even view this as
an insult? Anyone with a little knowledge can manipulate the system
at will.
5. Not a single conviction of a single politician has come for the
1984 Sikh carnage.
6. The so called landmark verdict on black money where a SIT was
ordered to be appointed was referred to a larger bench where it has
lingered for over a year and a half. This raises serious questions
about judicial independence in India.
7. An open and shut case like Kasab's will take 4 years to work its
way through the system. Of course the prosecutor Ujjwal Nikam would
claim that it is a great triumph, but if even this case had not
ended we would have been the laughing stock of tinpot republics in
Sub-Saharan Africa
Compare the above delays with cases in the US, such as the Rajat
Gupta conviction, Enron scam and Bernard Madoff case. In all these
cases the trial was finished in regular courts in 1-2 months.
Policeman-Prosecutor-Judiciary the lethal trio
8. India has the lowest citizen to police ratios in the world. The
recommended average is a policeman for every 200 citizens. In
India, the ratio is close to 700. If one takes into account those
tied up for 'VIP security', the ratio will probably be close to to
1 policeman for every 1000 citizens.
9. Cops simply don't have the time to investigate any case as they
will be called for securing routes for VIP convoys, attend to
traffic holdups, escort under-trials to courts, do passport
verifications etc.
10. Without training or forensic support all they can resort to is
crude torture to elicit confessions and claim to have solved cases.
Any confession made before a police officer is inadmissible as
evidence. So this is an exercise in futility. This lack of
admissible evidence is a major cause for pathetically poor
conviction rates (around 15%) for rapes in India. Is it so hard to
do a DNA test in this day and age? It is sheer callousness and
criminal indifference on the part of the police.
11. Appointments to inspector, sub-inspector, constable etc are
made after bribes running into several lakhs. These people are just
interested in a return on their investment and not doing their job,
so they deliberately destroy evidence, botch investigation, bully
witnesses to prevent them from coming forward.
12. Even the rare instance of an upright officer, will be subject
to threats and coercion. It is simply impossible for such an
individual to function in such an environment.
13. The next stage is the public prosecutor who is a political
appointee. Most of these are ignorant of the law and again
susceptible to the same bribery and coercion from higher ups as the
policeman.
14. The ignorance of the prosecutor is typically reflected in the
size of the charge-sheet. Instead of being brief and to the point,
charge-sheets are an example of verbal diarrhea in poor English.
All that is required for conviction is 1 witness who will stand
firm. Instead dozens of witnesses some of whom are probably
unconnected with the case or can be influenced are cited and these
will turn hostile during trial and undermine the credibility of the
true witness. This is a reflection of the 'history exam mentality'
where it is believed that pages and pages of junk is a substitute
for facts.
15. The CBI is a classic example of political interference. As Mr.
Joginder Singh (ex Director) has repeatedly stated, it can't even
take a bathroom break without permission. The Bofors case is a
classic example of how an open and shut case was deliberately
sabotaged by the CBI which in fact went out of its way to ensure
that Mr. Quatrochi was allowed to go scot free with his loot. We
have all seen how the CBI deliberately waters down cases against
the likes of Mulayam and Mayawati in return for their support to
the government.
16. The final stage is the judges. Judges are appointed from a pool
of lawyers, most of whom do not inspire any confidence. The
hooliganism and booth capturing seen during bar council elections
brings shame to the legal fraternity.
17. Once a bad judge is appointed he has to just sit tight and keep
getting promoted. This is why the quality of judgments in lower and
higher courts has consistently gone downhill. Mr. Arun Shourie's
book on this subject is a must read for anyone.
18. Judgments instead of being to the point are often long essays
in poor English. Some judgments are so bad that they either do not
address the issue that is asked, or are self contradictory or are
simply unimplementable. It is widely believed that reserving
judgments is a way of demanding inducements.
19. There are many instances of rampant corruption in the lower and
higher judiciary. Noted activist Prashanth Bhushan has even said
publicly that 8 of the last 16 chief justices were definitely
corrupt. The silence of the judiciary on this allegation is
deafening. Are they afraid to take on Mr. Bhushan? The icing on the
cake seems to be the rumor going around that a certain female
lawyer traded sexual favors to a spokesman of a political party to
get appointed as a judge.
20. Lack of reform in the administrative mechanism causes case
details to be physically transported from lower to higher courts
for appeals. There is a crying need for electronic transfer,
tracking and monitoring of petitions. So a case relating to a
property or murder in Nagalalnd will physically move through 4 or 5
appeals courts, finally making its way to the Supreme Court. At
every stage the evidence will be either lost or manipulated.
When a system is in such shambles no-one without the tenacity and
perseverance of Dr Subramanian Swamy can fight cases. Imagine how
effective India's one man army for justice would be in a system
that actually worked.
Law will take its own course. I have complete faith in the law.
Have we not heard the above line parroted by every politician
accused of graft, rape or murder? What they really mean is that
they are absolutely confident that they will be able to get
away.
In such a situation, what is an ordinary citizen expected to do? Is
he expected to run after justice endlessly while the other party
'manages' the system, or should he take matters into his own hands
and then 'manage' the system? This is a question that every citizen
of this country needs to ponder about. Unless all the above flaws
are rectified vigilantism and mob justice will become the norm.
After all when the system has failed, it is but natural that people
set right the injustices done to them as they have no-one to turn
to.
What is the solution?
01. Throw out the present CrPC and CPC into the dustbin. Replace it
with the American model to ensure speedy trials. Cases stretching
for decades are UNACCEPTABLE. I have no faith in your judiciary.
ALL trials must end in 3 months. Not just rape trials.
02. Train cops in investigative techniques and evidence
collection.
03. Set-up well equipped forensic labs with well trained
personnel.
04. Have a training institute for cops, prosecutors and judges and
increase the number of courts, judges and cops. India has the
lowest fraction of cops and judges for its population.
05. Have a transparent system to investigate corruption in the
judiciary.
06. Expose corrupt judges and cops. Have the harshest penalties for
those who betray public trust.
07. Setup an independent ombudsman to investigate judicial and
police corruption and ensure independence of the CBI.
08. Judges must be barred from holding public office or heading
commissions such as the NHRC after retirement. This is a form of
inducement to the judiciary. Even the Pakistani Supreme Court has
more independence and courage to confront the executive and
legislature compared to the Indian Supreme Court.
09. Implement police reforms to free cops from political patronage
and corruption.
10. Judges who release rape accused on bail must have a permanent
black mark against their career and lose all chance of promotion if
the accused repeats the offence or threatens a witness while on
bail.
11. For extremely brutal rape cases, a public physical castration
and beheading is necessary to serve as a deterrent.
12. Judgments should be brief and to the point. The operational
part of the judgment should be confined to 1 or 2 pages. And a 1or
2 page explanation for the same may be provided. Judges need not
pretend to be literary masters and waste their and the litigants
time.
13. There needs to be a foolproof electronic way of transferring
case related documents from lower to higher courts to save time,
money and the prevent the possibility of destruction of
evidence.
Either all these reforms can be done, or people will do what is
necessary and 'manage' the system later. This is what true reform
is all about Mr. PM (where you fix the corrupt and broken legal
system). Tinkering with percentages for FDI in retail in exchange
for suitcases of goodies is not reform.
Author : manekshaws | Follow the writer on
twitter/manekshaws
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Disclaimer: The author is a commentator on issues of national
interest. These are his personal views and do not necessarily
reflect IBTL's opinion.
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