By SHABIR AHMAD
Let me begin by paraphrasing Franz Kafka’s parable titled, “Before the Law”:
‘Before the Law stands a doorkeeper. A man from the country approaches him and asks that he be allowed to enter the law, but the doorkeeper refuses, saying that he can’t allow him to enter now. The man thinks thus over and then asks whether that means he might be allowed to enter the law later.”That is possible “, the doorkeeper says, “but not now”. For years, the man waits outside the door, constantly requesting the doorkeeper to let him in. Quite often the doorkeeper gives him a brief interrogation, asking him questions about the place he comes from and many other questions, such as important people ask,and at the end he always says he cannot let him in yet.The man,who equipped himself well for his journey, uses everything, no matter how valuable, to bribe the doorkeeper, who accepts everything, but says,as he does so,”I am only accepting this so you will not think there is something you have omitted to do. “The man grows older, and just as he is about to die, he asks the doorkeeper the questions that sum up his experiences:”Everyone seeks the law; so how is it that in all these years, no one apart from me has asked to be let in?”The doorkeeper responds:”No one else could be granted entry here, because this entrance was intended for you alone. I shall now go and shut it’.
This parable expresses the ordinary man’s perception of the law and its doorkeepers that is, judges. I would like to use this parable as a starting point of an assessment of the Indian Judicial System.
In 2013, a certain newspaper carried a story of a postman Umakant Dharma, who was acquitted of appropriating Rs 57 by a metropolitan magistrate, but not after he faced 350 oral hearings, and 30 years of suspension from work.Umakant was acquitted after a long time of 29 years. While Umakant’s story depicts the sorrier side of the justice delivery system, another case, that of, Mahipat Bamgude’s case captures its trivialization. Mahipat Bamgude and his friend, Ganshyam Bhosale, then aged 22, were going to attend a wedding ceremony,when a fellow passenger’s leg accidentally hit the complainant, Shankar Nivangune. This minor accident led such heated arguments, that Shankar filed a complaint in 1982 against the two under section 325 (voluntarily causing severe Burt) and 504 (intentional insult).The case remained forgotten until 2010. Twenty nine years later, when it was listed for first hearing. the complainant and all but one of the 13 witnesses had died.
In essence, the Indian legal and justice system is overburdened. This has narrated publicly by the former Chief Justice of India, TS Thakur, in an emotionally charged speech. Thakur lamented that a judge in the Indian court system disposes of 2,600 cases per year whereas in the US, 9 Supreme Court judges settle 81 cases. He broke down as he spoke, pointing to the executive that the India rising story is unachievable with a system that is plagued with potholes. This obviously leads to a backlog of cases and delay of justice. But , as they say, justice delayed is justice denied.
Why is justice delayed? The reason, to repeat, is that there is a back log of cases in India. Generally speaking, the problem that plagues the Indian judicial system and slows it down can be broken down into three areas of concerns.
Firstly, there are too many lacunas and gaps in Indian laws and acts resulting in filing of several frivolous cases thereby increasing the number of litigations. For example, the property rights and the related tenancy rights in India are so ill-defined that there are large numbers of litigations surrounding property disputes.
Secondly, legal proceedings are themselves, so complicated and ill-defined that the rate of clearing of cases is abysmally slow. In a case of 50 hearings, on an average, there would be 10-15 adjournments on inconsequential grounds. Then, the judge would be absent for another 10 of those hearings. Thus, the number of effective hearings in a case is quite low. Also, the gap between the dates of hearing extends to several months increasing the pendency of cases.
Thirdly, there is an acute shortage of judges in Indian courts. According to the Press Information Bureau, 2016, India has only 10.5 judges per million of population which is quite a poor ratio, when compared to other countries. The impact of such low ratio is reflected in the choking of India’s judicial system with a high number of pending cases and new litigations being filed every day.
When we deeply analyze these reasons, it can be observed that all the three pillars of Indian state — Executive, Legislature and Judiciary — are to be blamed for the persisting plight of Indian judicial system. The legislature,with its responsibility of framing laws, the Executive, with its task of appointing judges under the present collegium system and the Judiciary ,with the responsibility of ensuring hassle-free legal proceedings, work in tandem, resulting in the current state of Indian judicial system.
Besides the courts, there is another important institution of justice-the law enforcement agency: the Police. The role of police in providing justice is equally important vis-à-vis courts of law. Time and again, we read cases in the newspaper, where the police have refused to register an FIR or the charge-sheets filed are ambiguous. The ambiguity of charge-sheets often results in prolonging of cases especially in criminal litigations.
The police force is often accused of being uneducated, corrupt and in the pockets of politicians and bureaucrats. Most modern countries have no intermingling of police with the other parts of the bureaucracy. Local police force reports directly to the local communities that they represent and their relationship with the federal structure is well orchestrated. But India is continuing with the legacy of abusive British colonial rulers who treated Indians like slaves. It is easy to blame the police but they are not to be blamed entirely, they are doing only what they are doing.
Also, the office of public prosecutor is the main link between judiciary and police. In India, there is not enough importance and dignity attached to the offices of public prosecutor. Thus, it’s understaffed and lacks a modern infrastructure to execute quality work.
In other countries, different mechanisms have been devised to redress the strains and stresses on judicial system. For example, in the Scandinavian countries, before a person files an appeal in the court of law, he/she has to seek redressal of his/her grievance through alternate dispute resolution (ADR) mechanisms. ADR is an extra-judicial body that resolves grievances through mediation, thus reducing the number of cases filed in the court of law.
In Australia, there is provision for electronic filing of cases, unlike in India, where there is huge amount of paperwork involved. Use of technology in the judicial system can make the entire system much more efficient and aid in speedy trials. Certain countries have adopted ‘discovery system’ where each litigating party must disclose its evidences to the other party, so that both the parties are able to examine the evidences. This system also reduces the number of cases reaching the court of law.
In India, however, a law commission is appointed that is endowed with the task of suggesting judicial reforms. Over the years, the commissions have given innumerable suggestions to reform the judicial system such as constituting more number of benches, increasing the judges ratio from 10.5 to 50 judges/million of population, computerising the entire judicial process, bunching of similar cases and conducting their hearing under one bench and so on. But the impact of these commissions’ recommendations has been negligible. It is about time that new paradigms are adopted so that the common man obtains timely justice
—The author is a Civil Services Aspirant, Social Activist and Post Graduate in Political Science from the University of Kashmir. He can be reached at: [email protected]