Judicial Justice In India
01 June, 2005
By Amjed Jaaved
Because of the inordinate delays, relief in Indian Judicial System is well-nigh impossible to get. There are over 33 lakh cases pending before the High Courts alone. Out of these, five lakh are over 10 years old. In the lower courts, over 45 lakh cases are pending.
The Bangalore Law School analysed that it takes three months to three years to serve a summons or an emergency notice. Filing of written statements takes from six months to two years and interlocutory applications, from four months to four years.
Most delays occur in issuing and serving summons. There was an instance when summons issued by the Mumbai High Court to the attorney general of India came back with the remark "addressee not found".
Added to this is the problem of innumerable holidays. The Supreme Court, for instance, works generally for 180 days, high courts for 210 days and the lower courts for 235 days. In contrast, US courts observe only four holidays in a year.
Judicial relief will remain a far cry unless the ratio of judges to citizens from the current 1: 100,000 to 1:30,000. Atrocities during Indira Gandhi-imposed emergency have been well documented by Indian historians. But, what shocked the legal community and the laity alike was punishment of a police officer by a "fast-track court" in Junagadh after lapse of 27 years. The court sentenced (September 30, 2003) the additional director general of police (training) Sabir S Khandwawala, along with two other police officers, to five years' rigorous imprisonment.
The critics point out grotesque ironies in the Indian judicial system like: (a) After the Bhopal gas tragedy, the Government of India hired the American `India expert', Marc Galanter, to plead the case in New York. While discussing locus standi of his plaint, he argued that India's legal system could not deliver justice to the victims. (b) In 2000-2001, a 'murder accused' (Nadeem) took refuge in London to escape trial in India. He managed to convince the British court that a Muslim could not get justice in India. The court refused to extradite. (c) On September 13, 2003, two former chief justices (B.N. Kirpal and A.M. Ahmadi) sparred with each other in regard to a Japanese company's case.
Kirpal argued that the case should be heard in New York and not New Delhi as hearing in India would take 20 years to fructify. (d) Earlier in 2000-01, S.P. Bharucha, another former chief justice of India had remarked, "Twenty per cent of the Indian judiciary (that is 1 in every 5 judges) was corrupt". (e) Travesty of justice is obvious from the court's inability to punish the culprits in anti-Sikh riots (1984), the destruction of the Babri Masjid in 1992, and the Best-Bakery case. In the last case, India's Supreme Court Chief Justice, V.N. Khare had condemned the Gujarat Government for its inaction asking it to quit if it could not govern fairly.
The tragedy with Indian judicial system is that it is class-based, communal, anti-women, and anti-dalit (untouchable) Cases of oppressed dalits, minorities and tribals linger on undecided years after years. While trying an upper-caste Hindu who had raped a dalit woman, the judge observed, "It is unthinkable for a brahmin to rape a dalit woman". Violence against women goes unpunished. The minorities are generally scared of filing complaints lest they should be brutalised.
Measures taken (fast track courts, summary procedures, and draconian anti-terrorist legislation like POTA) have all foundered. Human rights organisations had seriously criticised even the Malimath Committee's proposals for revamping the criminal justice system by investing the police with even greater powers.
In an investigative report, Tavleen Singh (Indian Express dated April 10, 2005, 'Frozen in a hundred years of solitude') observes, "I discovered that Judges are so bound down by the Executive they cannot buy a piece of paper, or a fountain pen, without seeking the government's permission. No exaggeration. I discovered that where we should have a hundred judges we make do with ten and that an American magistrate deals on average with a hundred cases while his Indian counterpart deals with 4,000... it would take 325 years to deal with the backlog in Indian courts... With all the glib talk we hear these days about India being on the verge of becoming an economic superpower we forget that this will remain a foolish dream as long as we have courts that look as if they remain frozen in a hundred years of solitude".
India has a Western system of justice and rule of law that it inherited from the British. The truth, as Rep. Dana Rohrabacher, California Republican, pointed out, is that 'for Sikhs, Kashmiris and other minorities, India might as well be Nazi Germany'.