ONCE in a blue moon a judge,with an initiative tries to unravel the judiciary from the abasement in which it is stuck. In a democracy, it is rare because it makes judges feel safe to stay within the precincts of caution and convention. Still, some judges in India tried to restructure the establishment, no doubt, suffering in the process.
Path breaking judges like H.R. Khanna of the Supreme Court and Jagmohan Lal Sinha of Allahabad High Court,took cognizance of the timid judicial system, when it was a fashion to feather one’s own nest. Despite being aware of the dire consequences, Khanna dared to speak the truth during the emergency period. He differed with his other four colleagues and upheld the inviolability of fundamental rights. He was superseded and he resigned in protest.
Yet his judgment gave hope to the people of India that there were judges to uphold the truth, even when the tallest in the country had compromised to stay in office. Khanna articulated that the fundamental values of a democratic society demanded that every person must display a degree of vigilance and willingness to sacrifice. This is still a distant goal for India.
Another judge from the Allahabad High Court, Sinha, jolted the then Prime Minister Indira Gandhi for the official machinery entitlements during the election. He debarred her from holding any elective office for six years. Any assistance sought from a government servant “for the furtherance of the prospects” of a candidate’s election was considered an illegal practice. Yaspal Kapoor, Indira gandhi’s OSD worked for her election campaign and had built rostrums from where she addressed the rallies. Sinha ultimately gave a 21-day stay order to give the Congress time to elect another leader.
Despite such examples, the judiciary is losing sheen. People’s faith in obtaining justice is weakening, not only due to inordinate delay in getting the cases heard, but also due to the increasing impression that the judges can be managed. Clients and lawyers reportedly conspire to have hearings fixed before a particular judge. The word, corruption, was not heard some years ago. Today, it is on everybody’s lip.
Not long ago, judgments were pro-people, pro-weak and pro-environment. Laws were interpreted in such a manner that a common man got relief . The judiciary, particularly after the globalisation, has tended to side with riches, power and those who destroy the flora and fauna. The judiciary has also tried to arrogate itself the authority which belongs to the legislatures.
Yet, in India why the judiciary with all the power—sometimes it has strayed into the exclusive fields of parliament and the executive—has faltered when popular expectations have been different. Sometimes one gets the feeling that judges, sitting in their ivory tower, are more concerned with the law than justice. JAC need to be reviewed,there should be no political influence or leaning. There are various problems with this current set-up of hearing murder cases and cases where major leaders are involved or their sons are involved because there is pressure from above that is a political party or the father of the accused is from a political party that is in power at the time. Two interesting and woefully sad cases can be quoted here.
One is that of the Anti-Sikh Riots where the accused leaders are roaming around scot-free because of the ruling Congress shield which headed the government, both at the Centre and Delhi, although the reason given by the court is a lack of evidence which is completely baseless, as there are many witnesses who observed these two instigating people’s activities.
Yet another case where justice was not delivered because of political pressures was in the Sabharwal Case where Professor Sabharwal was clearly murdered by ABVP leaders, but because the trial was conducted in Madhya Pradesh where the BJP rules, the actual culprits roam around freely although here again the reason given was lack of evidence. Because of these extra political pressures from above many witnesses turn hostile fearing that they would lose their lives if they tell the truth. So clearly there is a problem regarding the witness protection. The other big problem, that is plaguing the judicial system right now that is causing cases to take so long to be solved is the problem of the victim having to provide evidence that the said person has committed the crime. If he fails to do so, the accused will be allowed to be set free by the courts.
This is known as tort law where you have to provide evidence to judge the accused guilty. This is highly problematic as again because of extra pressures and removal of circumstantial evidence it can lead to the acquittal of the accused. This has shockingly taken place in the Uphaar Cinema Case where the accused were set free because the victims could not provide evidence to the court to convict the two accused. Though in the end they were convicted, it was only after ten years of continuous struggle. The quantum of punishment was also highly insufficient compared to the magnitude of the incident. Here also the owners were sentenced to two years in jail, which was later reduced to one year. They were also asked to give Rs.1000 as fine. In fact the public prosecutor in this case had famously admitted that many a crucial information and evidence of the incident had been wiped out making it difficult to give a harsh judgement against the Ansal brothers.
So these are the problems that plague the Indian Judicial System at present. I would like to highlight the stigma to the Indian judiciary.Inevitably,it should be extricated from the political nexus.Secondly,the verdict by the apex court would be final,and couldn’t be amended in the parliament, especially,the matters of public interests.The evidence of the cases should be secure during the hearings.Indian judicial service need to be introduced and constituted vis-a-vis the States judicial services which have already been constituted in many states.Like,the other All India civil service,the judicial service should have judges at different sections,i.e.
different judges to be in charge of different types of cases(criminal,civil etc).50% of the existing judicial service posts should be appointed through combined competitive exams,and remaining by JAC recommendations.
Lots of judicial strengthening measures needs to be initiated to rediscover its glory that has lost quite a bit of sheen.The task is quite daunting but, “Where there is a will, there is a way”. Hopefully that will prove to be the case with the nation’s judicial machine.
By Aditya Jha