I am grateful that I have just 10 years to go in this profession.
A few years ago, at a Maharashtra Goa Bar Council seminar, eminent jurist Soli Sorabjee said the criminal justice system in India had collapsed.
Back then, I was surprised at the statement; I had seen the system up close for years. But over a period of time, I realised there is substance in what he said.
Far too many ills in the system have been nurtured over time. Just because someone is accused in a case or does not have any influence does not mean he or she deserves to suffer. I am, of course, referring to citizens who have a genuine grievance against a person or the system, and do not get justice.
Police Apathy
A citizen still cannot go to a police station and lodge a complaint for a genuine grievance. He cannot do so unless he is backed by a local politician or an IPS officer of the minimum rank of Deputy Commissioner of Police. When a citizen goes to the police station to lodge a complaint of cheating or a petty offence, the police flat out refuse to look into it. This attitude has not changed for years.
The citizen then has to approach the High Court. The court examines the case and thereafter, the matter is taken up for investigation. This is allowed to perpetuate because of corrupt politicians and bureaucrats.
A police officer feels that his salary is his birthright, and when he is investigating a case, he is entitled to a bonus. Only then will he do his duty. They are thick-skinned, and know that even if a writ petition is filed, it will come up for hearing only after six to eight months. By that time the officer will be transferred, and he will not bother about the case. The petition will be disposed of in two years.
Poetic justice
People are languishing in jail because bail applications are not heard.
When a bail application is filed under the Maharashtra Control of Organised Crime Act, which is for serious offences, it remains pending for one-and-a-half years.
Here’s how it plays out.
Either the judges are not available, or they are busy with other assignments. Either the cases don’t reach the investigating officer, or if they do, the officer is not present. So the matter gets adjourned. And when the officer is available, the public prosecutor might be missing in action. So the matter is again adjourned.
The attitude of the judges, even towards murder is, “After all it is a murder case. There is no urgency to hear it. Keep it after four weeks.” When they reject bail applications, it’s almost like a pre-trial incarceration for poetic justice.
In the 1980s, detention matters were prioritised. Four weeks were given to file an affidavit and matters were decided within two months. The detention was either confirmed or suspended.
I also don’t understand the concept of women’s courts. Why can’t male judges understand the problems of a woman?
Judges don’t fit the bill
The greatest irony is in the selection of judges. Eminent lawyer Ram Jethmalani once said at a seminar that one of the ills of the criminal justice system is that those appointed as high court judges have never gone to a magistrate’s court, attended to a single remand application, or worked on a criminal trial. And these are the people who are sitting in high courts to decide the constitutional meaning of sections or acts, and the facts of a case.
At the seminar, the conscience of one high court judge who was in the audience, was pricked, or at least it appeared that way. And he said, “You are right. I have the assignment of criminal matters, and I have never conducted a criminal trial. I have never conducted a remand, and I do not even know how the magistrates’ courts and sessions court work.”
How are these people even allowed to reach the High Court or Supreme Court? Many of them, after completing their studies, have not even opened the Indian Penal Code, the Code of Criminal Procedure or the Indian Evidence Act for the purpose of criminal understanding. They do not even know the meaning of a criminal trial, and how it has to be conducted.
When something is being introduced by the National Judicial Appointments Commission (NJAC), judges say the independence of the judiciary is being hijacked, and that it is executive interference. But what have you done? You call it the grand edifice, but it is hollow inside. Some day, it will collapse like a pack of cards.
Make judges accountable
The NJAC is required for accountability. Just as the Reserve Bank of India sets the fiscal policy, the government, after some reluctance, has set in place a mechanism for general policy accountability.
Let the NJAC circumvent its jurisdiction to entertain public interest litigations (PILs), and spend more time on people languishing in jails. Despite several directions from the Supreme Court, nothing has happened because there is no willingness to do something. Attitudes have hardened over time.
Judges should be made accountable. We — the people, lawyers — are helpless. Let PILs be handled by the administration. Judges must concentratrate on safety and security issues. They need to change their attitude towards the law, the accused, and the complainant.
Judges live in ivory towers. They are dispensing justice in PILs and taking up things on their own, and litigants are suffering. Judges are delivering judgments on subjects they know nothing about. Ultimately, they are doing justice neither to the system nor the cause because they haven’t understood the law. They haven’t read the letter of the law and are not implementing it in spirit.
Judges are not very sensitive, because they have been given facilities and they know no one will dislodge them from their positions. They are protected by Constitutional immunities and sovereign powers, and so are not answerable to anyone. The accused is in jail, and no one cares about his fundamental rights.
There are no exceptions to Article 21 (Right to life) and Article 14 (Equality before the law). They ask irrelevant questions and don’t read the documents. How do you make someone listen?
No to protégés
A few judges are protégés of senior counsels or prosecutors. Almost 40 per cent come from the ‘progeny’ and 60 per cent from the general pool. In some high courts it is the other way round.
What is paramount is that judges have to be trained criminal lawyers and not be there by virtue of a ‘progeny certificate’.
At one point, the Bar Council of Maharashtra used to organise a programme wherein senior lawyers from the civil, criminal, constitutional and other sections were given 40 weeks to go and deliver lectures to students on a particular topic. They stopped this because the Bar Council said, “You should not bring senior lawyers for the purpose of delivering lectures. You should bring full-time professors for this, which they are not.”
Cut the sychophancy
There needs to be a healthy relationship between the bar and the bench. There are seminars where you often get the space to interact, but the problem is, they have bred battalions of sycophants. Judges take everything personally and threaten you if you don’t abide by them.
Recruit early, pay more
Many legal practitioners want to join the bench early on, but are selected to do so at the age of 47 or 48 years. Only ‘progeny judges’ are selected between the ages of 38 to 45 years.
An early selection will be an incentive for those who have come up independently or the hard way, without help from their seniors or relatives who are judges.
Judges’ pay needs to be increased. The amount someone makes during his or her practice is incompatible with what they will make as a judge.
Earning more in a ‘pseudo-socialist’ country like ours is seen as a sin, and profit is a bad word, even though every government department and budget seek it in their balance sheets. At this rate, a couple of generations will go by before we realise that profit is required for generation of wealth.
The shortage of judges can be sorted out within the Constitutional framework by appointing Additional Judges to the High Court for less than two years. Under Article 220, no person who has held office as a permanent Judge of the High Court shall plead or act in any Court or before any authority in India except the Supreme Court and other High Courts. This restriction is applicable for permanent judges only, and not for additional or acting judges.
As told to >Sonam Saigal
For the complete list of stories in the Fixing Mumbai series, > click here
