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Tuesday, 22 January 2013

INDIA: Stop blaming the judiciary for government's failures

FOR IMMEDIATE
RELEASE
AHRC-STM-026-2013
January 21,
2013
A Statement from the Asian Human
Rights Commission
INDIA: Stop blaming the judiciary for government's
failures
Speaking at a function held
in Kolkata yesterday, the President of India, Honourable
Pranab Mukherjee has asked the country's judiciary to:
"ensure that those who are in the wrong side of the law are
dealt with swiftly and effectively to maintain social
balance." Iterating further, Mukherjee said: "though the
Indian judiciary has preserved its pre-eminent place in
Indian democracy, one area where it has lagged behind is not
fully meeting the aspirations of the people and provide
quick, speedy, and accessible justice to those who knock at
its doors."

The President is correct in his two
statements, though to a limited extent. It is correct to say
that a stable society to be built in a democratic framework
an independently functioning judiciary that is capable of
delivering justice is a prerequisite. However to expect the
judiciary to singlehandedly achieve this, is failure to
acknowledge the role of the state and its other apparatuses
in a democracy.

Mukherjee, the 13th President of
India, has mastered history, political science, and law and
has served India, as it's foreign, defence, commerce and
finance minister. Mukherjee served two terms as the finance
minister and in between, he also served as the Deputy
Chairman of the Planning Commission (1991-96), second only
to Mr. P. V. Narasimha Rao, the 9th Prime Minister of India.
Mukherjee has also served on the Board of Governors of the
IMF, World Bank, Asian Development Bank and the African
Development Bank. He has led the Indian delegations to the
Commonwealth Finance Ministers' Conferences in 1982, 1983
and 1984; the United Nations General Assembly in 1994, 1995,
2005 and 2006, the Conference of Commonwealth Heads of
Government at Auckland in 1995, and the Non-Aligned Foreign
Ministers' Conference at Cartagena in 1995.

To
quote the former Chief Justice of India, Justice Ramesh
Chandra Lahoti: "governments are under an obligation to
provide adequate machinery for justice, to appoint more
judges and to give them better emoluments and facilities; to
build more court houses; to enact better laws; to devise
better dispute resolution procedures; and to administer more
effectively and equitably; rather than to blame lawyers and
judges for the increase and proliferation of litigation."
Justice Lahoti served as the 35th Chief Justice of India and
retired in November 2005. This candid reflection of facts by
Justice Lahoti has found resonance in similar statements
made by all Chief Justices who have thus far served India.

During Mukherjee's tenure, as the finance
minister and in between at the Planning Commission of India,
the resource allocation for the judiciary by the government
was negligibly low. At no point, it went beyond one percent
of the total national plan outlay. It has not improved
today.

Today in India there is an estimated
backlog of 20,000,000 cases in the trial courts, about
4,100,000 cases in the High Courts and about 49,000 cases in
the Supreme Court. For a modern democracy, India has one of
the poorest judges to population ratio - estimated to be 14
judges per a million people.

About 16,000,000
new cases are filed before the courts in India each year.
Out of this, about 14,500,000 cases are disposed off
annually. This implies that a judge decides an estimated
1050 cases every year. Mukherjee should in fact applaud the
country's judiciary for it has not yet revolted against such
wanton neglect of the institution by the state.

A
substantial number of cases pending in courts are criminal
cases. Given the fact that on an average a criminal case
could take five to eight years to decide, many under-trial
prisoners spend more time in pre-trial detention, than the
maximum sentence prescribed for the offenses alleged against
them.

In 2002, the Supreme Court of India when
it decided All India Judges' Association and others
(petitioners) against Union of Indian and others
(respondents), directed the government that an increase in
the judges strength from the then existing 10.5 judges for a
million people to 50 judges. However, eleven years since,
this proposal is yet to be fully implemented due to lack of
infrastructure, including the number of judges and
facilities for judges to function. The provincial
governments have equally refused to cooperate, having failed
to provide adequate financial resources to implement the
Court's directives.

Additionally, to improve
justice delivery it is just not the number of judges, court
buildings and other infrastructure that need to be
increased. For example, appointment of public prosecutors is
a matter completely under the prerogative of the state.
Often appointments of prosecutors are delayed for
unacceptable periods. For instance in Thrissur district of
Kerala state, the appointment of prosecutors is not made
since May 2011.

Justice is not a concept that is
exclusively dependent upon the judiciary. The judiciary can
only process the lis brought before it. In countries like
India, and concerning the context in which Mukherjee was
addressing the country's judiciary, justice is a concept
closely associated with the visible presence of the rule of
law in the society.

The most important state
agency that causes a direct effect upon this perception is
the local police. The public judge their police based on the
manner in which police as an institution interacts with
them. These interactions leave lasting impression upon
people's minds. Police in India however suffer from some of
the poorest assessments by the people, so poor that an
overwhelming number of people perceive their police just as
criminals in uniform.

This is due to the deeply
corrupt and inept fashion in which police functions in the
country and its demonstrated bias as an institution against
guarantying security and safety to persons and property.
Fastening basic concepts of accountability, transparency,
efficiency, and steadfastness to police was never a priority
for any government in India.

Today India has one
of the worst performing law-enforcing agencies, bereft of
merits and professionalism, and unfit to serve a
fast-developing democracy. Given the fact that a large
number of cases pending before the courts are criminal
cases, it is only natural, that these cases having not
properly investigated would end up in acquittals. The
conviction rate in India is 4 percent since the past several
decades. Contrary to the wrong perception intentionally
perpetuated by the government, what is required is equipping
the police to undertake their job, as expected by an agency
in a democratic state. Instead, the government and
government-sponsored committees like the Malimath Committee
have recommended that basic laws in India be amended, to
take away fundamental concepts of criminal jurisprudence
from the laws, like the presumption of innocence and the
right to silence.

The country's judiciary in
fact must be praised for all the efforts it has thus far
made to drive-in the reality, that it cannot singlehandedly
deliver justice. Of the many judgments the country's Supreme
Court has delivered, for instance (i) the Charles Sobraj
case in which the Court affirmed its role to interfere "to
right the wrong" and "restore the rule of law"; (ii) the
Sunil Batra case where the court redefined the rights of
prisoners to be treated humanely and to be free from
torture; (iii) the Francis Coralie Mullin case in which the
Court reiterated that all forms of custodial violence is
unacceptable in law and warrants punishment; (iv) the D. K.
Basu case in which the court redefined the application of
the Criminal Procedure Code, 1974 to prevent mistreatment of
persons by the law-enforcement agencies and in the (v)
Prakash Singh case where the Court directed, literally, the
state to free the law-enforcement agencies from bad
political servitude; the Indian judiciary has reiterated its
faith in the rule of law within the constitutional fabric.
The judiciary has used its wisdom to demand from the
government, on all these occasions and more that are not
listed here, what the state should do to guarantee justice
delivery to the people.

However in India, the
state lacks this realisation, or the consciously refuses to
admit that the country cannot move forward without radical
changes brought into the entire apparatus of justice
administration. This includes affirmative actions by the
state, its legislature, the judiciary, and the executive.
Instead, expecting the judiciary alone to deliver justice
without the state and its other entities failing to
cooperate with the judiciary is nothing short of blaming the
judiciary for the state's fault.
Read
this statement online
# # #
About AHRC: The Asian Human Rights
Commission is a regional non-governmental organisation that
monitors human rights in Asia, documents violations and
advocates for justice and institutional reform to ensure the
protection and promotion of these rights. The Hong
Kong-based group was founded in 1984.

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