L A W  &  J U S T I CE

Justice always prevails.... three times out of seven
Joginder Singh Toor

“How many Supreme Court judges does it take to change a light bulb? Just one, she holds the bulb still and the world revolves around her”.

THERE is an old saying: the farmer who goes to moneylender or to a lawyer, his fate is sealed. This is perhaps a century old saying in Punjab. And holds true even now with an ironical twist; the old saying fits too well with the system. Indeed a foreboding for bad times.  Indian justice delivery system is deeply afflicted and collapsing is as obvious as the day. Litigants, lawyers, and in many cases sensitive judicial officials at many levels candidly admit that this judicial system practicing old rotten Anglo Saxon jurisprudence and based on colonial practices does not only suffer from inordinate delays thereby denying justice, but is getting corrupted and becoming a refuge for those who exploit it.

Our numerous cumbersome laws, rag tag court procedures and on top of it, the ever-increasing litigation costs only deter people to knock the doors of judiciary.  More than a thousand union and state laws and many times more notifications, at times contradictory makes it impracticable for the lawyers and courts to keep abreast with the latest There are more than 3,000 contempt petitions pending in the Punjab and Haryana High Court alone.  The governments in the states and at the center are the biggest litigants either way, facing charges from the public and its employees or themselves petitioning the courts. Contempt petitions involve some stubborn government officers who willfully defy court verdicts.

Numbers of pending cases tell their own tale. The figures available with the Law Ministry show that by November 2005 there were 33,635 cases pending in the Supreme Court and 34,24,518 cases in various high courts. The number of case pending in the lower courts crosses the figure of 30 million. There are 2,40,000 cases pending in the Punjab and Haryana High Court alone. The oldest being from 1969 and the old cases being listed for hearing are of the year 1980 to 1985. Equally bad is the inadequacy of funds, courts lack proper courtrooms, and basic facilities, such as furniture, fans, stationary much less computers or typewriters.

According to N. Vittal, former Central Vigilance Commissioner, “The average time span for a dispute to be resolved through the court system is about twenty years. Litigation has become a convenient method for avoiding prompt retribution by many people on the wrong side of law. Many a time, the criminals exploit the legal process itself to escape punishment. Take for example the widespread crime of corruption. One reason why we cannot check corruption is because the corrupt, with the financial clout of their ill-gotten wealth, are able to engage the best legal brains and quibble their way through the legal system and laugh all the way to the bank.”

A Harshad Mehta case involving a financial scam of hundreds of crores that wrecked the stock market, takes a decade to be finally decided.  How Charles Shobhraj hoodwinked the Indian judicial system and indulged in crime or now the Telgi stamp paper case are just examples. What came of the infamous lottery racket involving billions of rupees and operated from the North East where powerful politicians worked in tandem with the corrupt officers. Sukh Ram case is another example. The rich, the famous and the powerful have no trepidation of law, government and now even courts. The system in nutshell is fast breaking down and if somewhere it is holding ground, it is because of those brave honest and sensitive persons in the judiciary.  A photojournalist sought the intervention of the high court to get a case a registered against a political biggie who had kicked him for doing his professional work and it took eight long years for the court to order the registration of first information report.

The problems of judicial inertia and the prohibitively expensive nature of securing justice get compounded with corruption. Judiciary is the last resort for any relief and if this reeks with corruption where should the needy go. The scams involving some members of even higher judiciary in bribery, sex, nepotism and abuse of power force us to think of reform as never before. The image of the judiciary and its credibility are low. This adversely impacts the delivery of justice to the ordinary citizen. All this suits the ruling establishment and the rich since those who have the power of force or money to get around justice. It is the poor and the oppressed, the common people who desperately need a good administration of justice, who suffer.

Out that 1.8 crore cases are filed every year and 1.5 crore get disposed of. Difference of input and the output is marginal, but it is significant.  Infrastructure is one big reason. Budget allocations for justice delivery system are low, almost meager. There were 13,000 judges including 26 Supreme Court Judges and 640 high court Judges in December last year. One Judge on an average delivers 1,150 judgments per year and is not able to meet the increasing number of cases. There are 116 vacancies in the high courts out of total sanctioned strength of 675. There is no in house cleaning system.  Why should the higher courts observe 155 holidays in a year? A developing country can ill afford this luxury.

How powerful is the judiciary. Ask an influential politician or a commanding police officer, the all-potent instruments of the Indian administration system in any where in the country. Once appointed, a judge of a high court or the Supreme Court cannot be touched except by a complicated procedure of impeachment. As per the constitutional provisions, a judge of a high court or the Supreme Court can only be removed by impeachment after 100 members of the Lok Sabha or 50 members of the Rajya Sabha move the speaker, who may refer the charges to a committee of judges whose verdict is put up before both the houses of Parliament. The judge can only be removed if a two third-majority of members present and voting approve the verdict of the committee. So rarely cases go that level and if at these go then like former Punjab and Haryana high court chief justice Ramaswamy case where finally no punishment for corruption could be given.

The higher judiciary also enjoys nearly unlimited powers of punishing people for contempt of court. Any person who dares make any allegation of corruption against a sitting judge can be charged and punished for contempt, even if he is in a position to substantiate the charge. The judge can even sit in judgment on his or her own case, and can actually refuse to permit the alleged contemnor to lead evidence to prove the charge. This unrestrained power can easily be a misused. A recent amendment in the law of contempt where truth is now a good defence may help to keep bad elements under check.

So what can be done? Tragically the Indian state has somewhere lost its will to reform. Thus to expect it to change the Anglo Saxon system with an indigenous system is out of question. That kind of surgery may not be performed. Yet we could delay judicial reforms at our own peril.  There is need to increase the number of judges at all levels and their selections process is more stringent and timely. The lower level judicial officers should be paid well and made accountable. Judges from high courts and Supreme Court should retire at the age 70 and debarred from holding any office of profit under government like commissions of enquiry later on. Equally important is to de-politicise selection of judges at the high court and Supreme Court level. An independent national judicial commission is one answer. Centralized judicial system based on colonial system should give way to more democratic system like courts at village, tehsil and district level accountable to chief district judge. There is need to evolve Indian jurisprudence and legal system in tune with times and needs.

[Joginder Singh Toor is a senior lawyer at the Punjab and Haryana high Court. Jogindersingh_toor@yahoo.com]

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