India: Prosecutorial division is one of the most corrupt

T. K Naveenachandran, Nervazhi; Bidyut Mohanty, SPREAD; Bijo Francis,
Dr. Rajat Mitra, Shiv Karan Singh and Avinash Pandey, all from A LRC

1. Are all persons and authorities bound by the same laws?

No, there are statutory (controlled or determined by the law) exemptions for offices like that of the head of the state and government entities.

2. Are all persons and authorities entitled to the benefits of all laws?

No, for example, if an ordinary citizen defaults payment towards a loan, the system with the laws will throw the person out into the streets. Whereas, if the defaulter is a rich or a powerful person, the law and the system will not work against that person. If a person is tortured in custody, the law fails to protect the person, whereas it protects the perpetrator.

3. Are all laws publicly made?

No. Laws are not discussed and debated in a way comprehensible or accessible to the ordinary public. Rules that are addendums to Acts are often not debated in the parliament. In addition, most laws are not available even in official languages, for which the state has not allocated resources.

4. Are all laws promulgated so that all persons can know what the laws are?

No.

5. Are all laws applied only prospectively?

Yes, but in some monetary issues, the state has exercised its discretion.

6. Are all laws administered in the courts?

No. In the Criminal Procedure Code 1973 itself, executive officers of the state are empowered to administer law. The Indian Army Act, 1950 negates this principle.

a. Is the investigative system under the police adequate to enable the courts to administer justice?

Certainly not, there are many problems about the police. For example, the policy of the state is to not have reforms to INSTIL investigative capacity to the police.

b. Is the prosecution system adequate to enable laws being administered by the courts?

The prosecutorial division of the state is one of the most corrupt, least debated and inefficient to the core department.

c. Are the courts not interfered with by the government or other political pressures or by pressure from powerful lobbies?

There is no reason why the Indian judiciary should not be independent. However, judges themselves, and through them the institution subjugates (under domination or control/make someone under you) itself to political power.

d. Is there public confidence that the courts competently and impartially administer the law?

No.

e. Is the procedure for appointment, promotion and dismissal of judges made through an objectively justifiable process that inspires public confidence?

No. The collegium system of appointment and the internal process of discipline is not transparent and has hence resulted in corruption.

f. Are the positions of judges secure from any interference into the making of decisions, impartially and independently?

Same answer as in ‘C’.

g. Once the court makes a decision, is it guaranteed that the decision will be implemented?

No, the state if required will go out of the way to legislate to defeat the judgment. In simpler cases, the executions of judgments are delayed due to the state failing to provide resources.

h. Are the police, prosecution services and the courts provided with adequate resources to administer their services in a competent and efficient manner?

No.

i. Are all possibilities of corruption prevented?

Corruption is the norm. On the contrary, every possibility is encouraged.

7. Are the laws accessible to all?

Cost of litigation, delays, proximity of courts, absence of practical and reasonable legal aid, all prevents access to law.

8. Are the laws, so far as possible, intelligible, clear and predictable?

No. One example is the Land Acquisition Act that is so complex that amendments and the law itself is difficult for the judge and the lawyer to understand. This has facilitated corruption.

9. Are questions of legal rights and liabilities ordinarily resolved by the application of the law and not through the exercise of discretion?

In a country where even complaining of the violation of a right is difficult, application of law, subsequent to a complaint stands less chance.

10. Do the laws of the land apply equally to all? (save to the extent that objective differences justify a differentiation)?

Practical application: Laws are applied differently to different persons. For example, if an ordinary person commits a crime, chances are that the person will have to run through the process of law. Often this process is also exploitative. Whereas, if a powerful person, it could be a politician, bureaucrat or simply rich, commits a similar crime, they could beat the system, at all levels. Selective application of the law is the norm, to benefit people in power.

11. Do the laws afford adequate protection of fundamental human rights?

No. For example, FR jurisdiction is limited to what is known as the higher judiciary. These courts are inaccessible to the ordinary people, by cost, proximity and its own process of self-screening, and linguistic issues.

For example:

a. Do the laws adequately prevent any form [all forms] of discrimination?

No. Some laws made to accommodate vote bank politics discriminate against people based on religion. Legislations like the AFSPA discriminates the rights of the people in places where the AFSPA is enforced.

b. Do the laws prevent extrajudicial killings and disappearances and other methods of the extrajudicial deprivation of life?

Generic criminal law provides protection. However, specific laws implemented with discrimination, negates this.

c. Is torture and ill-treatment prohibited and prevented?

No.

d. Is illegal arrest and detention prohibited and prevented?

Yes, in law, but not in practice.

e. Is fair trial guaranteed to everyone?

No.

f. Is freedom of expression guaranteed?

No.

g. Is the right to freedom of movement guaranteed?

No.

h. Are the freedoms of association and freedom of publication guaranteed?

No.

i. Do people have the right to elect the government of their choice?

Yes, but election does not guarantee the rule of law.

k. Are measures taken to prevent absolute power?

No.

12. Are means provided for resolving, without prohibitive cost, or inordinate delay, bona fide disputes which parties themselves are unable to resolve?

No.

a. Is the cost of litigation prohibitive?

Yes, the litigation costs are prohibitive since the beginning of the court system.

b. Are there inordinate delays?

Yes.

c. Can people have recourse to courts without suffering the risks of physical harm and other attacks or threats to their life?

The people who dare to contest cases face severe threats to their lives, liberty and property.

d. Can a witness participate in court proceedings without incurring risk to their life and liberty?

There are no witness protection laws.

13. Do the ministers and public officers exercise their powers reasonably and in good faith, for the purpose for which the powers are conferred?

Ministers and public officers act unfairly for political advantage.

a. Do public ministers and public officers exceed the limit of their powers?

Yes when it comes to political advantage.

14. Are the adjudicative processes provided by the state fair?

For the reasons stated above adjudication processes are not fair.

a. Are decisions made behind closed doors?

Although decisions are made in open court, due to corrupt practices and politicization, actual decisions are made behind closed doors.

b. Has the role of lawyers become an obstacle to fair practices in adjudication?

The role of lawyers is negative, and by and large lawyers have acted to their own advantage and not to the preservation of litigation practices under the rule of law.

15. Does the state comply with its international obligations?

No.

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