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Wrens In A Thornbush

The state, courts are complicit, so the status quo

Wrens In A Thornbush
Wrens In A Thornbush
outlookindia.com
-0001-11-30T00:00:00+0553

The acquittal of all the accused in Jessica Lal’s case has been a wake up call for the media and the elite in the country about the state of the judicial system in India. While the collapse of the judicial system in India was widely perceived by the weaker sections of society, for most of whom the system never existed, it took the abject failure of a case like Jessica Lal’s (where the victim was a member of the elite) to bring home this reality to the dominant classes.

Jessica Lal’s case has only underscored the grim reality that virtually no influential person accused of any crime gets punished through the Criminal justice system. Whether it is Chandraswamy, or Narasimha Rao or the Hindujas accused of white collar crime, or whether it is a Manu Sharma, or a Nanda or a Soren accused ot violent crimes, all of them roam freely in the country; their trials continuing for decades, before the end of which they die or at the end of which they are acquitted. Of course, occasionally a petty constable may get quickly convicted, but that is because, he is not so influential and without powerful godfathers.

The reasons for this failure of justice are obvious to anyone who understands the system. To begin with, an influential accused is usually able to influence and compromise the investigating agency, the state of the police in this country being what it is. Thus he is usually not even charged for the crime and sometimes completely innocent poor persons come to be charged with their crime. In the unlikely event that an influential accused comes to be charged, it is easy for him to employ expensive lawyers, to prolong a trial for years and even decades. The average length of a trial in this country exceeds 5 years and would exceed a decade in some parts of the country. While poor people without access to lawyers continue to languish in jail during trial, the influential ones can continue with their normal lives and crimes on bail, during their trials. Apart from the fact that witnesses die or become unavailable and the victim’s family gets exhausted in a prolonged trial, an influential accused uses this time to buy over or intimidate witnesses and/or influence the prosecuting agency. The procession of hostile witnesses in case after case shows that this is rampant now. If however, even this fails, there is always the judge who can often be influenced. And if even that fails, you can always take your chances with the prosecuting agencies and the judges during the appeals which will also take many years.

The malaise within the system is well known and well understood by the government and those within the system. Some of the solutions are also known and have been recommended by various commissions of the government. For example, it has been recommended by various Commissions starting from the National Police Commission (1981) that we need to revamp the police by separating the investigative wing of the police from the law and order wing; by having credible independent institutions for securing the accountability of the police; and by having statutory security Commissions which will insulate the investigative wing of the police from the executive.

The successive Law Commissions have been recommending that we need more judges across the board to speed up the judicial process. Yet, neither the government nor the courts are serious about this, with even a large percentage of existing posts remaining vacant. It is also universally acknowledged now that we need to have credible systems of judicial accountability. However any independent institution to hold the judges accountable is being opposed tooth and nail by the judiciary. Apart from this, we need to amend the Contempt of Courts Act and do away with "scandalizing the court", from the definition of Contempt. This clause has been often used to protect the judiciary from serious criticism, which has only served to accentuate the contempt of the people by forcibly trying to keep the lid on it. With greater accountability of the judiciary, we may have judges who use the powers vested in courts to check the influencing of witnesses and the police during investigation or trial. Most importantly however, we need to make the judicial system more informal so that it can be accessed by the poor and marginal sections without the help of lawyers, who mainly serve to protract the litigation and who cannot be afforded by them.

There is however no indication that those who run the system, the government or the judiciary itself, are serious about making any of the above changes. Unfortunately the government and the judiciary have both developed a vested interest in the present collapsed system. Those who are in power do not need the judicial system to get justice. They have the power of authority. It is the poor and weak who need the system most, usually against those in power. And of course it suits the judges to remain unaccountable. However, the proliferation of Arbitration, called Alternative Dispute Resolution, in which most retired judges are now earning lakhs a month (sometimes lakhs a day), has created a huge vested interest among judges not to reform the system. If the system worked, no one would go for arbitration which is now a state-recognised system of expensive privatized justice for the wealthy. You often see judges in seminars today recommending the strengthening of Arbitration as a means of bypassing the present failed judicial system.

The elitist and collapsed judicial system in this country which in any case exists only on paper for most citizens, will not be reformed unless there is a strong grassroots peoples movement for reforms by the consumers of justice. The reality check and outrage induced by the Jessica Lal case can provide the impetus for creating such a movement. But it will require committed activists who are prepared to devote a substantial part of their lives to this cause, and not merely page 3 celebrities who will come for lighting candles at India gate and then go back to their parties.


(The author is a Supreme Court lawyer and rights activist. A slightly shorter, edited version of this article appeared in the print magazine)

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