{"id":1291,"date":"2008-06-05T13:22:47","date_gmt":"2008-06-05T05:22:47","guid":{"rendered":"http:\/\/alrc.asia\/article2\/?p=1291"},"modified":"2015-12-17T12:40:17","modified_gmt":"2015-12-17T04:40:17","slug":"indias-dharmachakra-seen-but-not-felt","status":"publish","type":"post","link":"https:\/\/alrc.asia\/article2\/indias-dharmachakra-seen-but-not-felt\/","title":{"rendered":"India\u2019s dharmachakra seen but not felt"},"content":{"rendered":"

Bijo Francis, Programme Officer, Asian Legal Resource Centre, Hong Kong<\/strong><\/span><\/p>\n

T<\/span>he concept of justice was once not alien to India. The logo of the Supreme Court depicts the dharmachakra<\/i>, the wheel of justice from the 3rd century BCE lion capital with the inscription, \u201cYadho dharmasthadho jayah.\u201d The phrase, in Nagri script, means, \u201cVictory is where justice reigns.\u201d The logo was adopted on 28 January 1950, when the court was first set up in the Chamber of Princes, within the parliament building of New Delhi, just two days after India became a republic.<\/p>\n

By the time I enrolled as a lawyer in India, some 44 years had passed since the establishment of the Supreme Court. Among my first cases was a matter of the partitioning of some land between its co-owners. For my senior colleagues at the law firm, it was a relatively safe case to give a young lawyer with hardly a week\u2019s experience in the court. For them the main contest had been concluded several years before, when the preliminary decree had been awarded. All that was left was to execute the partition in terms with the decree.<\/p>\n

It took me a while to gather and read all the old documents pertaining to the case, which in reality consisted of nothing much other than a few title deeds, a death certificate, a copy of both the judgment and decree from the trial court and a few dozen addresses. While I was studying these, what struck me was that the case was about 23 years older than me. It had started in 1950 and had taken about 40 years to be decided, during which time the original parties had died.<\/p>\n

Curious to know what kept the court from deciding the case for such long time, I traced out the\"India\"<\/a> proceedings from the day it was filed in court to the day I was handed the brief. Again there was nothing much, apart from adjournments for various reasons, some on the request of the lawyers for both the plaintiff and the defendants, and quite a few because the court probably thought that the case could not to be heard on a particular day.<\/p>\n

Surprisingly, at no point did the court or either of the parties to the case, through their lawyers, insist that it be finalised; or at least there was no record of any such insistence.<\/p>\n

When I appeared in the court, I brought my observations regarding this long period of time to the attention of the judge. The judge, who was also relatively young, agreed that the case must not continue any further without some strong reason. The case was finally disposed of in a matter of three days. When I described my experience, with certain pride, to some of the senior members of the bar they laughed at me and said that I was no good for the profession.<\/p>\n

Fourteen years hence and I am now quite sure that there was some truth in what they said. However, the truth is with a twist. The legal profession in India is no good for me, since I have lost my trust in the system. I also know for sure that I am by no means alone in having this feeling. Most of India is with me.<\/p>\n

Discussions about the Indian legal system often revolve around the innovative methods that its courts have used to intervene on socially and politically important issues. The use of public interest litigation is one example. Often people also discuss landmark judgments, such as the Golaknath case, Keshavananda Bharati case, Maneka Gandhi case, Minerva Mills case, D K Basu case and recently, the Prakash Singh case. The Government of India also readily cites these cases to show off the courts and their relative independence when compared to their counterparts across the world.<\/p>\n

However, the independence of the courts and judges is but one factor in a meaningful and functioning legal system. Domestic laws, ease of access, court facilities, speed of trial and the quality of legal professionals are among the other important elements.<\/p>\n

Among these, the time that it takes for Indian courts to dispose of cases is something that the government does not advertise abroad, yet it is perhaps what distinguishes India\u2019s courts most markedly from those in other jurisdictions in the region and perhaps all around the world. Whereas a two or three year delay in an ordinary case even in relatively underdeveloped jurisdictions is considered unreasonable, in India a delay of ten years fails to excite interest or sympathy for the affected parties, most of whom, whether the accused or victims, are poor.<\/p>\n

The case of Afsar contained in this special report that advocate Salar M Khan has prepared for article 2<\/i>,<\/span> \u2018Judicial delays to criminal trials in Delhi\u2019 (vol. 7, no. 2, June 2008), is illustrative. Although Afsar was acquitted, it took the courts 11 years to decide his case. There is at present no way in India to compensate Afsar for his being forced to face criminal charges for over a decade despite the absence of a single independent witness to support the case against him, or for the days he remained in custody.<\/p>\n

The certainty of long delays has rendered India\u2019s courts instruments of injustice rather than justice. The filing of cases, both civil and criminal, has become a means of harassment rather than a way to obtain justice.<\/p>\n

Those with genuine disputes find ways to settle them without approaching the courts; often these means are themselves illegal. Once a rare phenomenon, limited to the acts of organised crime\u00a0<\/b>decade extralegal methods to dispute solving have now sprung up everywhere. In one case where local people apprehended a suspected thief during the last year, a police officer joined them in beating up the suspect in public, rather than in performing his duty and affecting an arrest. In some areas, \u201cjustice\u201d is now obtained through the parallel institutions of Naxalite and Maoist insurgent groups. Many ordinary villagers prefer their swift and certain judgments to the refined dictums of some of the finest jurists in the world handed down decades later.<\/p>\n

That the courts are now seen as places to be exploited is a consequence not only of criminals\u2019 behaviour but also that of corrupt law-enforcement officers. In Kerala, for example, a circle inspector of police stationed in Thrissur district named Sasheedharan was infamous for running a gang of local hoodlums who acted as debt collectors. He charged a certain amount for their services as collectors and also for the guarantees of legal protection in the courts that he offered. He finally fell victim to a rival gang and was dismissed from the service, but had made enough money that he no longer required a government salary or pension to survive.<\/p>\n

Even if police officers are not themselves involved in manipulating and using the courts like this, delays in cases greatly harm morale. If an investigating officer is aware that a case is not likely to be decided for years and that in the meantime the accused may commit similar offences or jump bail, it diminishes the likelihood that the officer will investigate honestly and earnestly as required by law. It also increases the chances of that officer committing acts like assault and torture. The long delays in cases can thus be linked to the high incidence of custodial abuse and violence during criminal investigations, as the perception is that what is meted out to the accused there and then might be the only punishment that the person gets.<\/p>\n

Many delays are a result of fundamental problems within the prosecutor\u2019s office. Prosecutors often do not have even the minimum materials with which to do their jobs. Most lack basic facilities, like a telephone. It is thus impossible for prosecutors to liaise with the investigating agencies to ensure proper and timely conduct of trials, such as by seeing to it that their witnesses turn up on the appointed day.<\/p>\n

For instance, in the sixth of the case studies in this report, that of Shiv Pujan Rai and another, the prosecution failed to ensure that the forensic science report needed to secure theevidence of possessing drugs was brought into the court in a timely manner, causing a delay of about six months. Thereafter, the prosecution did not produce the three police witnesses of the recovery of the drugs until the end of the trial, at which point it became apparent that discrepancies in their testimonies could have had a significant bearing on the case had they been brought to the court at the start. All in all, the case came up for hearing on 62 occasions and the two accused, both too poor to hire lawyers or seek bail, remained in jail for about four years before being acquitted.<\/p>\n

The government of India has tried to address the delays; however, its attempts have been halfhearted and counterproductive. For example, setting up fast-track courts without appointing new judges and prosecutors is as good as having no new courts at all. In several states, even today the new buildings for these courts stand empty for want of judges and prosecutors, clerical staff and equipment.<\/p>\n

More alarming, however, have been some of the proposals to amend criminal procedure of the sort outlined in this report. Among them have been the government\u2019s attempts to fasten non- retractability to the statements given by the witnesses to investigating officers through an amendment to section 161 of the Code of Criminal Procedure (CrPC), 1973 and the Evidence Act, 1872, by making these statements admissible in a court of law and thereby prevent witnesses from turning hostile and allowing the accused to go free.<\/p>\n

The experiences from high-profile trials like those following the Gujarat massacre reveal the inadequacies and inappropriateness of such approaches. Witnesses reverse or alter testimony for many reasons, including fear of the accused. Alternatively, they may be coerced into testifying only to later reveal that they were not witnesses to crimes at all. Without any witness protection programme in India, delayed trials place witnesses at heightened risk; in Gujarat many accused who were released on bail spent their time haunting witnesses and threatening them not to depose. The state administration exploited long delays in cases to see that the accused were acquitted.<\/p>\n

Although many of the causes of delays can be attributed to specific institutional and administrative problems, in some respects their causes are much more deeply embedded in India\u2019s society than this. The dharma<\/i>, or justice, that is inscribed in the Supreme Court\u2019s logo has long been brutally suppressed by centuries of caste discriminatory practices, beginning from the latter half of the 2nd century BCE. Since then, it has been the concept of inequality by birth, not equality by law, which has been enforced in India. The dharmachakra <\/i>is thus seen over the Supreme Court building yet not felt by the society over which it supposedly reigns.<\/p>\n

In the modern setting, among those who stand to gain from leaving things as they are, those who are accorded an unequal status are India\u2019s legislators. An estimated 65 per cent of them are facing criminal charges, including of rape, murder and fraud. Little wonder that these corrupt politicians lack the motivation to bring about change to the woeful state of the country\u2019s courts. Their inaction can in this light be seen as nothing but the continuation of over two millennia of unjust practices continued to the present day in a new form.<\/p>\n

The present study<\/b><\/span><\/p>\n

Salar M Khan, the author of the study in this edition of article 2<\/i>, \u2018Judicial delays to criminal trials in Delhi\u2019 (vol. 7, no. 2, June 2008), is a Delhi-based lawyer who has been practicing since 1992, specialising in constitutional and criminal law. He has appeared before various courts and commissions in many cases with bearing on human rights in India. Currently he and another advocate, Ashok Agrwaal, are running an Internet discussion group called \u2018Article 21-NOW\u2019, referring to the right to life under article 21 of the Constitution of India, which concentrates on personal liberty, custodial killings and fake encounter killings. (The group can be visited at: http:\/\/ groups.google.co.in\/group\/article21now?hl=en&lnk=gschg.) Khan is also associated with the Campaign against Impunity of the South Asia Forum for Human Rights (SAFHR) along with many other civil society groups spread over the whole of India.<\/p>\n

Although Khan knows from personal and professional experience the obstacles to justice in India posed by the many delays in cases before India\u2019s courts, he has explicated these not simply by stringing together stories from his day-to-day practice but through an informative study of both the numbers and durations of delays in Delhi and through the examination of ten case studies of ordinary criminal cases gone wrong in the courts. Together these paint a graphic picture of India\u2019s collapsing criminal justice system, of which the Delhi courts are just one part and by no means the worst.<\/p>\n

In addition to his study of the delays in courts, Khan has also provided for this edition, as a useful and appropriate supplement, a discussion of proposed amendments to the Code of Criminal Procedure. If introduced, these amendments will in the interests of administrative expediency rather than justice greatly undermine basic protections for parties in criminal cases, as well as witnesses. Many are reconfigurations of the proposals from the earlier Malimath Committee which the legal fraternity has already soundly rejected. These proposed amendments, Khan concludes, should for the most part be given similar short shrift, leaving aside those in the interests of victims rights and a few other measures that are long-overdue.<\/p>\n","protected":false},"excerpt":{"rendered":"

Bijo Francis, Programme Officer, Asian Legal Resource Centre, Hong Kong The concept of justice was once not alien to India. The logo of the Supreme Court depicts the dharmachakra, the […]<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[38,91,168],"tags":[169],"class_list":["post-1291","post","type-post","status-publish","format-standard","hentry","category-bijo-francis","category-india-sri-lanka-sri-lanka","category-volume-07-number-02","tag-volume-07-number-02"],"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/alrc.asia\/article2\/wp-json\/wp\/v2\/posts\/1291","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/alrc.asia\/article2\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/alrc.asia\/article2\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/alrc.asia\/article2\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/alrc.asia\/article2\/wp-json\/wp\/v2\/comments?post=1291"}],"version-history":[{"count":3,"href":"https:\/\/alrc.asia\/article2\/wp-json\/wp\/v2\/posts\/1291\/revisions"}],"predecessor-version":[{"id":1346,"href":"https:\/\/alrc.asia\/article2\/wp-json\/wp\/v2\/posts\/1291\/revisions\/1346"}],"wp:attachment":[{"href":"https:\/\/alrc.asia\/article2\/wp-json\/wp\/v2\/media?parent=1291"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/alrc.asia\/article2\/wp-json\/wp\/v2\/categories?post=1291"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/alrc.asia\/article2\/wp-json\/wp\/v2\/tags?post=1291"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}