Indian Justice Delayed is Indian Justice Denied
|Nov 30, 2007|
In what must be a judicial record anywhere, courts across India on a single day, October 24, handed out life sentences to 60 people in four different cases – although there is no sign that any of them will go to jail anytime soon.
Two of the cases relate to murder, one to planning the assassination of a prominent opposition politician and a fourth to plotting communal riots. The initial reaction to the sentences was an impromptu pat on the back for the judiciary and all-around praise for democracy. Nobody was above the law, wrote pundits, be they policemen, former ministers or fundamentalist leaders. The judgments, some observers noted, had once again affirmed the faith of the common man in the judiciary.
But a few days later, the dissenting murmurs started. A major complaint was that the judgments were so long delayed. The hearing of one of the cases, in which 11 Muslim residents of Uttar Pradesh were burned to death in communal riots in 1992, started 15 years ago. One defendant died during the trial. The three other cases had stretched for 10, nine and four years, respectively.
Secondly, all the judgments have been handed out by lower courts. The accused are certain to appeal to higher courts and many more years will pass before the final verdicts are in. In the case of Amar Mani Tripathi, an Uttar Pradesh state minister who was convicted along with his wife and a hired assassin of murdering a poet, Madhumanita Shukla, in 2003, the reaction of his lawyer on hearing the court’s verdict was: “We will appeal in the High Court.''
In fact there is a massive backlog in the Indian courts. According to one estimate, it would take 350 years to resolve all the cases in India at the current disposal rate. Some 25 million cases are pending in lower courts, another 3.7 million in the high courts and another 40,000 before the Supreme Court. Nearly 250,000 lower-level trial defendants languish in Indian jails, of which some 2,500 have been in jail for more than five years.
Minister for Law and Justice H.R. Bhardwaj has thrown his hands up. Speaking before the Lok Sabha, the lower house of the Indian parliament, recently, he acknowledged that there has been a 25 percent increase in the number of pending cases before the Supreme Court alone in just the last year.
“The backlog of cases in the higher judiciary has shown an increasing trend despite various corrective measures being taken for their speedy disposal by courts. The measures include increasing the number of judges from time to time, besides grouping together cases involving common questions of law, and constitution of specialised benches to facilitate faster disposal,” he added.
That justice in India drags on is evident from the timeline in the case of a fire in the Uphaar cinema hall in New Delhi. In 1997 a spark in a transformer led to a fire engulfing the newly-renovated hall, killing 59 moviegoers. A Delhi court held 12 people guilty for the tragedy, including the owners, brothers Sushil and Gopal Ansal. The judgment was finally delivered on November 20, 2007, a full decade after the tragedy but not before the case had meandered through many twists and turns:
June 13, 1997: 59 people die of asphyxia in the hall during the screening of a Hindi movie.
July 22, 1997: Sushil Ansal is arrested by the crime branch of the Delhi Police. The investigation is transferred from the Delhi police to the Central Bureau of Investigation, controlled by the Indian government.
November 15, 1997: The CBI files a charge sheet against 16 accused.
March 10, 1999: The trial begins in a sessions court.
February 27, 2001: The court frames charges against the accused.
May 23, 2001: Recording of testimony of prosecution witnesses begins.
September 4, 2004: Court starts recording statements of accused.
November 5, 2005: Recording testimony of defense witnesses begins.
August 2, 2006: Court concludes recording of testimony of defense witnesses.
February 14, 2007: Accused start advancing final arguments.
November 20, 2007: Court convicts all 12 accused. The Ansal brothers face imprisonment of at least two years.
Various reasons are cited for the huge backlog, but among there are four main culprits:
Insufficient infrastructure. There is a big shortage of court buildings, support staff, libraries and technical equipment. This impacts the speed and quality of justice.
Archaic laws, many of them dating back to British rule. Thus, photography of the imposing Howrah Bridge in West Bengal is banned. But it is perfectly okay to buy picture postcards of the tourist attraction from nearby vendors. Until six months ago, no photographs were allowed from any plane flying within the borders of India.
Inadequate numbers of judges. In India, the ratio of judges to population is 12 to 1 million, compared to 107 in the US, 75 in Canada and 51 in the UK. Judges cope with such huge lists by announcing adjournments, which prompt people to grease palms.
Corruption. India ranks 70th of 163 countries on the Corruption Perception Index in Transparency International’s 2007 judicial corruption report. The report records two types of widespread judicial corruption: political interference and bribery. It points out that there is a high level of corrupt practices among clerks, prosecutors and police investigators who misuse their power.
A survey carried out by Mint, a Mumbai-based publication, revealed that an astounding 59 percent of respondents had paid bribes to lawyers, 5 percent to judges and 30 percent to court officials. They had paid the bribes for various reasons including getting favorable judgments, obtaining bail, manipulating witnesses or speeding up judgments.
In rural areas at least, speedier judgments may be around the corner if a new experiment in the north Indian state of Haryana takes off. The country’s first mobile court was launched in Mewat district in August this year. The mobile court is in a bus traveling from one site to the next. This is only a small step, but mobile courts could be a relief to rural people as they will be saved from making frequent trips to central towns to attend hearings.
At a higher level, in April at the Chief Justices' Conference 2007 in New Delhi one of the sessions was devoted to the speedy disposal of cases. The measures suggested included linking the increase in judicial strength in the High Courts to pending cases, establishing additional Magisterial Courts and evening/morning courts to be presided over either by serving or retired judges.
Even outside chambers there is widespread discussion about the reasons for the delays and many solutions are being proffered including:
Making the judiciary more accountable
Making use of Information Technology in the justice delivery system
Quashing criminal proceedings if the parties agree to compromise
Video recording court proceedings
Using websites to explain basic law to laymen
The Chief Justice of India revealed that a new policy for sifting cases into different categories will be introduced to decide priorities, with preference given to cases of corruption and sexual assault against women. Criminal cases will also be given attention since two-thirds of the cases clogging the lower courts fall in this category.
Clearly, at all levels judicial reform will have to be undertaken on a war footing. According to a study based on data from Indian States and conducted by Dr Wolfgang Köhling of the University of Bonn in Germany, there is a relationship between judicial quality and economic development. A weak judiciary, Kohling found, negatively affects economic and social development. India’s judicial machinery will have to move into a higher hear – if the country wants to move speedily ahead.