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Thursday, April 2, 2009

Is It Them Or Is It Us ?

Re:"Crass Disregard For The Law" The Hindu 02/04/2009

We all love to bash the extremists.

But excuse me, we are bhi tho not doodh se dhule huve.

When the judicial system appears to revel in its derelict, dysfunctional state, pathologies will follow.

Or will they not?

Consider this horror from The Hindu's own archives :

It’s just another day... NAVAZ KOTWAL AND MAJA DARWALA
In our courts, justice works in mysterious ways that are beyond mortal understanding.
Photo: Mahesh Harilal

The Judicial system:
In need of an overhaul.

After five years of knocking about district courts, you have to laugh really; if you didn’t, you would cry, it is all so pathetic.

It’s the fast track courts today. The case hasn’t reached very far. After five years, charges are still being framed. Today it is number three on board. Everyone waits. His Honour is well known for coming late on to the bench: never there before noon. But no one dares challenge the incredible waste of public time; instead they sweat gently into their seats and whisper resentfully about the law’s delays inside the filthy little court.

When the Honourable finally arrives, neither prosecution nor defence counsel are present. The accused have been there for hours, their eyes anxiously casting about for their lawyers. The witnesses too are downcast. They have been victims and are frightened all the time. Now they will hang about in close proximity to their tormentors for the whole day and lose a day’s wages in the bargain. But that is hardly the court’s concern.

All in a day’s work

While we wait, the next case is called. It’s a murder. Five witnesses are to be examined — two doctors and three policemen. The doctors are not around. The police are. The judge asks them if summons have been served to the doctors. Yes, say the smart cops, just this morning, they would have got it by now. The judge knows better. One of the doctors had to come from a town 100 km away and the other from a village 75 km away. The summons had been issued 10 days ago. The judge loses it. “Why did you wait till the 10th day? He shouts, “From top to bottom you are a lazy and corrupt service will never improve.” The audience laughs, happy to hear from on high what they cannot say with any safety. The cops shift on their feet but this is too common to care about and the court is too little a power in their universe to be a serious worry. Nothing is going to happen beyond a few standard slurs.

The judge signals and matters begin. The accused shuffle in and the formalities of examination begin. Meanwhile the Public Prosecutor is nowhere to be seen. His name is called out again and again. Still nothing. The judge takes over and does the examination in chief. The defence then takes on the cross. The case is reinforced by a dying declaration. This is strong stuff and valuable to the prosecution’s chances of getting a conviction. So valuable in fact that the record shows that the police have drawn it out of the dead man an hour after the body had been sent for post mortem examination. The confirming panchnama has been performed even after the dead man’s statements were recorded This proves beyond a shadow of a doubt the old adage that the long arm of the law will get you in the end and now seemingly even beyond the grave if it has to. This is almighty good policing.

The defence asks the cop if there is any possible explanation he would like to put forward for such diligence and tenacity. But the cop is now as quiet: silent as the grave, you might say. The defence goes on. Does the policeman recall that one of the accused had a fractured leg and was on crutches when arrested? Is there a reason why the arrest memo and confirmatory inspection note missed this somewhat obvious condition? More silence ensues, as the defence buries the case.

Given the other circumstances, it’s likely that the police had in fact caught the right lot but no reliable corroboratory evidence has been gathered. As the errors in investigation mount up, the judge intervenes: have senior investigating officers seen these reports; has the case diary had the Deputy Superintendent’s attention? He despairs of responsibility or good practice coming from this quarter and comments: “You people don’t take your work seriously and when the judgement is delivered you blame the judiciary for letting off criminals.”

But all is not lost. There are the expert witness doctors yet to come. At 3 p.m., after the lunch recess, the much awaited doctors appear. The Public Prosecutor is still nowhere to seen and after a few desultory cries for him the judge again takes on expert witness examination. It should be a straightforward formality.

Expert witness

In the cross, the defence counsel establishes that it is the same doctor who has provided the post mortem report. It is indeed. Death, he says, was due to deep head injuries. The bones had been broken and pierced through. The site of injury is clearly mentioned in his report. The defence accepts these truths but is curious: where might the Frontal lobe be, is it in the front above the eyes or on top where the hair grows? The doctor hesitates and points a wavering finger mid-way at his own head. The defence wants clarification: is it up here or down there? But the doctor is accommodating — he is willing to go either way. The defence leaves that alone. The Frontal, it is now established, could be anywhere that is not “backside”. That’s fair enough. But still nice to know where all the other bones might be: so he asks where the Occipital is situated. These long names are getting the doctor down. He is in a sweat: Temporal, Parietal, Occipital — what is all this? What’s in a name? Isn’t it all somewhere around the head? The defence is patient. He asks gently, what the term CSF mentioned in the post mortem is. The doctor perks up. He knows this one. For sure “F” stands for “fluid” but is not really sure about the C or the S. One out of three is surely good enough. The defence thinks so and is satisfied.

Too many battles

The judge is not. The post mortem report is going to have no value if the doctor who did it can not verify it. He explodes. He asks the doctor if he has ever studied medicine; does he have a degree; is he really a registered practitioner? The doctor does not answer. The judge does not want to know. He knows the system too well to take on another battle. He waves him out. The cross is over. The defence rests. The result has been foreclosed.

Our case is called. But the defence lawyer says his submissions will take a full day and asks for a date 10 days hence. The judge knows he should hear the matter day to day. But the day is nearly over and there seems little point in starting arguments now. He has other business to attend to. So he gives a date nine days hence. He says he is helpless. We are all helpless. We bow ourselves out. It’s just another day in the palaces of justice. Ho hum.

Maja Daruwala is Director of Commonwealth Human Rights Initiative while Navaz Kotwal is Programme Coordinator.

© Copyright 2000 - 2008 The Hindu

And now consider the context:

Rs. 2,630-crore bribes paid to lower judiciary: report

Legal Correspondent

Delays and corruption lead to cynicism

  • Miscarriage of justice in Gujarat riots case
  • Upper judiciary is relatively clean

  • · New Delhi: Transparency International has revealed that an estimated amount of Rs. 2,630 crore was paid in bribes to the lower judiciary in India during 2006.

    · The Global Corruption Report 2007 released on Thursday deals with corruption in judiciary in 32 countries.

    "Although provisions for theindependence and accountability of the judiciary exist in India's Constitution, corruption is increasingly apparent. Two decisions provide evidence for this. One, a Supreme Court decision in the 2002 Gujarat communal riots exposed the system's failure to prevent miscarriage of justice by acquitting persons close to the party in power.

    The second involved the acquittal in 2006 of nine people allegedly involved in the murder in 1999 of a young woman, Jessica Lal, even though the incident took place in the presence of a number of witnesses. One of the accused was the son of a politician."

    Two manifestations

    The report says, "Corruption has two manifestations: one is the corruption of judicial officers and the other is corruption in the broader justice system. In India, the upper judiciary is relatively clean, though there are obviously exceptions.

    "Proceedings are in open court and documents are available for a nominal payment. There is an effective system of correction in the form of reviews and appeals. In the broader justice institutions, corruption is systemic. There is a high level of discretion in the processing of paperwork during a trial and multiple points when court clerks, prosecutors and police investigators can misuse their power without discovery."

    The report points out that the Centre for Media Studies, which conducted a countrywide survey in 2005 on public perceptions and experiences of corruption in the lower judiciary, found that bribes seemed to be solicited as the price for of getting things done.

    "The estimated amount paid in bribes in the 12-month period [in 2006] is around Rs. 2,630 crore. Money was paid to the officials in the following proportions: 61 per cent to lawyers; 29 per cent to court officials; 5 per cent to judges; and 5 per cent to middlemen. The primary causes of corruption are delays in the disposal of cases, shortage of judges and complex procedures, all of which are exacerbated by a preponderance of new laws."

    Huge pendency

    As of February 2006, cases numbering 33,635 were pending in the Supreme Court with 26 judges and 33,41,040 cases in the High Courts with 670 judges. There were 2,53,06,458 cases in the 13,204 subordinate courts. This vast backlog leads to long adjournments and indolence in India's judiciary and this prompts people to pay to speed up the process.

    The ratio of judges is abysmally low at 12-13 per one million persons compared to 107 in the United States, 75 in Canada and 51 in the United Kingdom.

    The degree of delays and corruption has led to cynicism about the justice system. This erosion of confidence has deleterious consequences that neutralise the deterrent impact of law. People seek shortcuts through bribery, favours, hospitality or gifts, leading to further unlawful behaviour, says the report.

    The Lawyers of Chennai or the Shiva Sena; Or a Jaswant,Mulayam or Stalin "helping the poor".

    Or the editorial class itself, crassly dissing a sathyagrahi.

    They all know the system of checks and balances in India is just so much mush. They have that "faith" in the system.

    And they take their chances.

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