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Unimplementable orders

Two recent judgments look like they will remain on paper

In 1981, the Supreme Court passed an order directing the shifting of some graves in Doshipura in Varanasi from a Muslim graveyard, but the order is yet to be implemented. Similarly, while some were debating how implementable the recent verdict on the entry of women of all ages into the Sabarimala temple is, the order fixing timings for bursting of firecrackers during Diwali this year was flouted with impunity.

Recently the court has passed two orders which I fear will remain on paper. In the first, the court has asked each High Court to designate as many sessions and magistrate courts in the concerned States to try criminal cases against sitting and former MPs and MLAs. The government informed the court that there are 4,122 criminal cases pending against MPs and MLAs in 440 districts across the country.

A case takes time to decide. The cumbersome Code of Criminal Procedure must be followed. Charges must be framed, witnesses must be examined and cross-examined, documents must be adduced in evidence, and arguments must be heard. Only then can a well-considered judgment be delivered. Moreover, the witnesses and even the investigating authorities may turn hostile.

The existing number of courts in India are already overburdened with 33 million pending cases. Should a section of them give up dealing with the cases before them and only deal with these cases relating to MPs and MLAs? Then their cases will have to be handed over to other judges, who are similarly overburdened.

The second order in question is for implementing the Witness Protection Scheme of 2018. It is well known that nowadays it is nearly impossible to get independent witnesses in criminal cases. If someone sees a crime, the tendency is to avoid getting into trouble by deposing about it to the police or the court, which may invite reprisal by the party against whom the witness gives evidence. Consequently, a judge is rarely sure that the witness is being truthful. To mitigate this outcome the government has framed a Witness Protection Scheme, but how practicable is it? The scheme proposes giving witnesses a new identity. There are over 28.4 million cases pending in subordinate courts in India, of which perhaps 70% are criminal cases. If on an average there are half a dozen witnesses in each case, this may require change of identity for millions of people. Is this feasible, financially or logistically?

Other proposals also appear unrealistic. The scheme mentions providing police escort to the courtroom, temporary safe houses and relocation of the witness. But how simple is it to relocate an individual whose job requires him to be at a fixed location? For how long and to how many will the police provide protection?

Unless orders factor in these considerations, they may go the way of the Doshipura graveyard.

The writer is a former judge of the Supreme Court

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Printable version | Jul 5, 2020 10:32:52 AM | https://www.thehindu.com/opinion/op-ed/unimplementable-orders/article25704504.ece

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