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Courting Justice
Looking
at India’s justice dispensing system, one is surprised by the
sociology of the legal profession
Sach Kanwal
Singh
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More than three crore cases are pending
in Indian courts, and while Supreme Court judges hear 80 cases a
day, five days a week, more than 50,000 are pending there.
Subordinate courts have worse data. Clearly, justice is not
available at a reasonable price to most citizens, and that at a
time when the state is becoming more ruthless in dealing with
democratic struggles and people’s movements. Is Indian
establishment’s denial of justice by design or by inefficiency?
Is it not a cunningly contrived situation where even the Chief
Justice of India feels helplessness? |
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 At
a time when aggressive struggles for democratic rights in India are
sought to be thwarted by the establishment with many instruments at
its hands, and are given a bad name and thus maligned, there is one
other way to deny justice to the people. The utter slowness of the
justice dispensing system is enough to kill anyone waiting.
The government
is calling the various struggles as Maoist menace, farmers'
uprisings, localized protests, militancy, insurgency and what not,
except what these struggles represent. People are trying to break
out of the shackles imposed by the establishment, voices for self
aspiration are becoming shriller, and more and more marginalised
people are joining and launching such struggles.
Clearly, there
is also pressure on the judicial system because the government gets
more and more repressive to contend with such challenges from the
grass root level. In any case, even for petty crimes, the justice
delivery system is not only unimaginably and shamefully slow but is
also tilted towards the rich since more money, costlier advocates
and influence at the higher echelons of power gets speedy justice.
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There is a close correlation between upsurges from below of the
impoverished rural and urban masses and the way the justice
system is working in India. The rulers of India slash at
democratic rights, and focus on how best to eliminate, whether
by co-option, arrest or murder, the emerging leaders of mass
protest. But hardly any matching speed or diligence is being
exhibited by the courts to defend the territory of the citizen. |
If your son was
killed by the police in a fake encounter, expect that case to linger
on for years because the courts will be busy resolving the various
fights between the Ambani brothers over gas ownership.
There is a close
correlation between upsurges from below of the impoverished rural
and urban masses and the way the justice system is working in India.
The rulers of India slash at democratic rights, and focus on how
best to eliminate, whether by co-option, arrest or murder, the
emerging leaders of mass protest. But hardly any matching speed or
diligence is being exhibited by the courts to defend the territory
of the citizen.
Impoverished
rural residents are being sacrificed at the altar of private profit
and new anti-worker policies are coming to replace the pro-worker
laws. Stories of successful resistance are there but are being
thwarted by slow justice.
Now, even the
Chief Justice of India K.G. Balakrishnan has admitted that the
judicial system in many States is not proper. Though this is only a
partial admission, the disclosures that he made while addressing the
valedictory function of the 125th anniversary celebrations of the
Irinjalakuda Courts on Saturday in Thrissur were astonishing.
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The Supreme Court and various high courts regularly hear
petitions lamenting that a particular section of society is
inadequately represented in service or in education. Ironically,
one field in which women are grossly underrepresented in India
is the higher judiciary itself — of 617 high court judges in the
country, only 45 are women. And currently, there isn’t a single
woman judge in the Supreme Court.
The strongest contingent of women judges in India is in the
Bombay High Court, which has seven of them on the bench (roughly
a tenth of the total number of judges).
In contrast, six of the country’s 21 high courts — Chhattisgarh,
Himachal Pradesh, Jammu and Kashmir, Rajasthan, Sikkim and
Uttarakhand — have no women judges at all.
‘‘The statistics don’t surprise me. Women face gender
discrimination in all walks of society,’’ said Neelima
Chandiramani, principal of K C Law College. ‘‘Mumbai, though,
has always been better than other parts of the country for women
in the legal profession. Here you see more women practising at
the Bar than anywhere else. Thus it has a pool from which women
are elevated to the high court.’’
The Supreme Court itself has seen only three women justices in
the 59 years since it was set up. The last woman judge in the
Supreme Court, Ruma Pal, retired in 2006.
A parliamentary committee report tabled in October 2008 said
that women, among other weaker sections of society, were
‘‘inadequately represented’’ in high courts and the Supreme
Court. However, the government also says its hands are tied by
the Constitution on the issue.
Appointment of judges to the Supreme Court and high courts is
made under Article 124 and 217 of the Constitution of India,
respectively, which do not provide for reservation for any caste
or class of persons.
Experts do say that with time, the situation may improve. Some
269 posts of high court judges are currently lying vacant and
some of these are sure to be filled by competent women.
Moreover, the situation is believed to be much better in
subordinate courts where the proportion of women judges is
healthier than in the higher judiciary. Some of these judges
will also be elevated to high courts in the coming years.
‘‘Most importantly, many more girls are now studying law than
ever before. With time they will shine in the legal profession
and be recognized for their work. And then you’ll see as many
ladyships as lordships,’’ Chandiramani said.
Anna Chandy from Kerala became India’s first woman judge in
1937. Her promotion to the Kerala high court in 1959 made her
the first woman judge to make it to a high court. |
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“Facilities are
few in many States for people to approach courts, file cases and
engage lawyers. Systems are not in place. When visitors to the
National Judicial Academy in Bhopal want to know how the Indian
judiciary functions, they cannot be taken to courts in the region
because the judicial system there leaves much to be desired,” he
observed. Remember that this is
India's
top judge talking publicly. If he says that systems are not in
place, then do you think that it is without a systematic effort to
avoid putting systems in place that has brought about the current
state of affairs?
Obviously, the
Indian establishment as a whole has never bothered to make justice
available across the board. The Chief Justice went so far as to say
that even adequate funds were not being made available to start new
courts.
“A huge backlog
of cases is the main problem of Indian judiciary...Without new
courts, the backlog cannot be cleared. For long, I have been
exerting pressure on authorities to set up new courts, but to no
avail.”
Here is the
Chief Justice of India, feeling frustrated. Feeling frustrated and
saying it so. Saying it so, and that too publicly. And remember,
this is not the first time he has expressed such helplessness.
Some of the
statistics reeled out by the Chief Justice should make India's civil
society and justice loving people anywhere sit up and take notice.
There are huge swathes of the countryside which are totally excluded
from avenues to seek justice.
Take a simple
case of numbers regarding how many approach the courts in which
state. In Kerala, 28 out of 1,000 people approach courts for
justice, whereas in Chhattisgarh, only four persons out of 1,000
people do this. Now, these are the figures given out by the Chief
Justice. And he took pains to stress that "it does not mean
offences, including human rights violations, are not perpetrated in
Chhattisgarh."
We, in fact,
know that in Chattisgarh, the human rights violations are happening
at a scale that will put any society to shame. A team, said the
Chief Justice, appointed by the Supreme Court visited Chhattisgarh
and discovered that only 80 to 85 out of 200 murder cases were being
registered.
Some 3.5 crore
cases are pending in courts across
India.
And while the government is dragging its feet over setting up of new
courts for long, the CJI says unless there is a large number of new
courts, the pendency cannot come down.
In the
subordinate courts, the situation is worse. The pendency of cases in
subordinate courts in just Maharashtra is now pegged at 41,38,766
undecided cases. These figures are taken from an affidavit by
Principal Secretary, Law and Judiciary department filed in the
Bombay High Court. In the Maharashtra High Court, a total of 3,36,
680 cases (2,96,619 civil cases and 40,061 criminal cases) were
pending till the end of 2008.
By the end of
March 2009, the Supreme Court had run up a backlog of more than
50,000 cases. Judges hear more than 80 cases a day and pendency has
steadily crept northwards since 2006.
And the pendency
of the cases is not the only problem. We are well aware how the ends
of justice are thwarted in Indian courts. A recent three judge bench
judgment of the Supreme Court held R.K. Anand, one of the most well
known senior advocates in India and some one who has remained close
to the power centres in the Congress, guilty of contempt for
suborning a prosecution witness in a case that was consistently
under the media gaze.
The defence and
the prosecution advocates were trying to convince a defence witness
not to depose in the court properly. But what is important is now
just the fact that the Supreme Court established and brought out
what most know happens casually and all across the country every
day.
There are other
significant comments by the highest court in India.
 One
Supreme Court judge wrote: “We find that even some highly successful
lawyers seem to live by their own rules of conduct. We have viewed
with disbelief senior advocates freely taking part in TV debates or
giving interviews to a TV reporter/anchor of the show on issues that
are directly the subject matter of cases pending before the court
and in which they are appearing for one of the sides or taking up
the brief of one of the sides soon after the TV show.”
As Soli Sorabjee
has written in context of this case, “never has there been such a
forthright and much-needed judicial criticism of the legal
profession. The court has not merely preached sonorous sermons. It
has pungently reminded lawyers that they are not simply traders,
such as those in Chandni Chowk operating on the law of demand and
supply, but they belong to a noble profession — and the solution for
professional decline must come from the lawyers themselves.”
Unfortunately,
unlike in neighbouring
Pakistan
where lawyers have stood up as a collective to usher in democracy,
in India, these men in black robes have not really become an
intrinsic part of the civil society movement. The sociology of the
legal profession leaves much to be desired..
27
May 2009
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