Tag Archive | High Courts

Drawing Line Between Trial And Punishment ! – By Mukesh Jhangiani

                                                                                                                          March 25, 2011

M. Veerappa Moila

M. Veerappa Moily (Photo: Nestlé)

Drawing Line Between Trial And Punishment !

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – More than 300,000 under-trials were let out of custody after a special drive begun early last year but with new arrivals daily the number in prisons remains almost what it was– more than 200,000.

”Imagine the plight in absence of such an effort,” was how a senior government official responded when asked about the impact of the special drive, which, he pointed out, has been extended.

Article 21 of the Constitution lays down that ”No person shall be deprived of his life or personal liberty except according to procedure established by law.”

A statistic to bear in mind: roughly two out of every three prisoners in India are under-trials– only one is a convict serving sentence.

Doing Time, Doing Vipassana

Guilty or Innocent (Photo: publik16)

That, critics say, is a telling reflection of a justice system ostensibly committed to treating an accused as innocent until proven guilty.

For instance, 162 of 543 Members elected to Parliament in 2009 faced criminal charges as against 128 in 2004. Correspondingly, 76 and 58 of them faced serious charges.

Of 813 legislative assembly members in Assam, Kerala, Puducherry, Tamil Nadu and West Bengal, which go to the polls next month, 204 faced criminal charges, 83 of them serious charges.

Serious crime cases include those involving murder, attempt to murder, kidnapping, robbery and extortion.

The special drive was an initiative by Law and Justice Minister M Veerappa Moily to decongest prisons.

”We want to dispose of as many as two-thirds of the under-trial cases by July 31,” Dr Moily told journalists on Republic Day eve 14 months ago. ”The mission begins January 26.”

The exercise involved expediting legal process for some 200,000 under-trials as part of a National Mission for Delivery of Justice and Legal Reforms.

In a jurisprudence known to let even those accused of serious crimes get bail or get elected to legislatures, many under-trials are believed to spend longer in jail than their alleged petty crimes warrant.

By law anyone arrested has a right to be informed of any charges he or she faces, consult a lawyer of his or her choice and to be produced before the nearest magistrate within 24 hours of arrest.

Lawyers say that without legal aid, those who cannot afford bail inevitably suffer prolonged incarceration during the pendency of investigation by police and trial by a court.

Experts say they languish simply because they are illiterate, do not know their rights or charges they face, and cannot afford lawyers– although Rs 50 crores is spent annually on legal aid.

According to a National Human Rights Commission consultant, India’s prison capacity in December 2008 was 293,144 inmates, against which 386,791 inmates were actually in prison– 264,502 of them under-trials and 122,289, convicts.

While authorities have been acquiescing in the miscarriage of justice, the victims’ plight has, from time to time, evoked concern at home and abroad with critics assailing India’s tortuously slow courts.

India is bound by several international human rights conventions and for decades the government as well as courts have been aware of the violations.

An early official reference to the plight of under-trial prisoners came in the findings of K F Rustamji, a National Police Commission member, 32 years ago.

He saw under-trials as ”dumb, simple persons, caught in the web of the law, unable to comprehend as to what has happened, what the charge against them is, or why they have been sent to jail,” and prisons as a system ”slowly grinding thousands of people into dust.”

Indeed, the first public interest litigation– Hussainara Khatoon & Ors vs Home Secretary, State Of Bihar… 1979– brought to light how undertrial prisoners had been in jail longer than if they had been charged, tried, convicted and given maximum punishment.

Supreme Court lawyers recall a September 1977 judgement by Justice V R Krishna Iyer who held that ”the basic rule may perhaps be tersely put as bail, not jail.”

Among exceptions he spelt out ”are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like.”

”It made clear that incarceration in the name of judicial custody and protracted or delayed trial is itself criminal as it hits at the very base of Article 21,” says advocate Ravi Prakash Gupta.

Eight years ago, National Democratic Alliance Law Minister Jana Krishnamurthy drew attention to the plight of more than 200,000 under-trials.

”It’s a shame,” he said, that in independent India men and women have to await their day in court for over ten years.

The yearly cost to public exchequer for under-trials upkeep was then estimated at Rs 4.6 crore.

Although under-trials’ guilt is yet to be proven, they remain in prison almost indefinitely.

Experts say unlike convicts, found guilty, they are not even entitled to such basics as uniforms, literacy lessons or work.

NHRC consultant Lakshmidhar Mishra says children and juveniles are worse off inasmuch as they are put up in regular jails with hardened criminals contrary to law for lodging them in police lockups or observation homes, which are neither adequate in number nor adequately equipped.

There was no let-up until about a year ago, when a move to cut two thirds of under-trial cases was announced by Dr Moily of the United Progressive Alliance.

Addressing lawyers on November 26, 2009, marked as Law Day, the Minister regretted the justice system’s failure to give every citizen equal protection of law.

”A necessary corollary to the guarantee of the rule of law is Article 14 of the Constitution,” Dr Moily reminded.

Article 14: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

”Unfortunately,” he admitted that ”justice delivery system in its working in India has not been able to guarantee this protection to every citizen– man, woman and child.”

The government asked High Courts to identify under-trials not involved in heinous crimes or preventive detention so that their cases may be put on a fast track to expedite pressing cases.

The Indian Constitution guarantees speedy trial. But the commodity is routinely in short supply, with litigation often taking years, even decades.

Indian courts have close to 31 million cases pending, a factor that discourages justice seekers at home, investors from abroad, and has even judges advocating alternative ways of resolving disputes.

Hope may be hard to entertain given hundreds of High Court judgeships and thousands of lower judicial posts perennially vacant and inconsistent sentencing practices across India undermining the deterrent value of law.

Government figures show that there were 213,739 under-trials in prison as the drive got underway.

Over the next six months or so, only 43,504 were convicted and 50,282 discharged.

As many as 309,728 under-trials were released after having been kept in jails for unspecified periods.

About the same time, 399,115 new under-trials arrived in prisons across India, to wait for their day in the court.

Government data indicate that of 612,854 under-trials in prison for unspecified periods– ranging from a day to possibly several years– merely 7.09 per cent were actually convicted in those six months or so.

The figures made available do not, for instance, specify how long individuals spent in jail on what sort of charges before they were convicted, discharged or released.

Nor has there been a mention of compensating any who might have been jailed or held without basis.

Any compensation awarded by human rights or other authorities is discretionary, depending on how a given judge feels at the moment– hardly fair.

No compensation is mandated by the Indian Constitution or statutes for wrongful confinement.

In a telephone interview with United News of India special correspondent Mukesh Jhangiani, Dr Mishra called it ”a significant omission,” and agreed that a remedial legislation is needed.

But given the pace of legislation in India, remedies are neither swift nor easy.

The figures indicating that the number of under-trials in prison at the end of the drive was 212,454– just 1,285 less than at the outset– do not necessarily reflect a nationwide trend.

In 16 out of 27 States or Union territories for which the Justice Department has received figures, the numbers actually went up.

West Bengal led in this increase with 14,238 under-trials put into prisons while 9,337 were released, an increase of 4,901 under-trials in prison.

It was followed by Orissa, with an increase of 4,305, Rajasthan, 3071, Haryana, 1,737, Jharkhand, 1,726, Bihar, 1,550, Chhattisgarh, 1,516, Gujarat, 1,086, and Assam, 1,000.

Smaller increases were reported by Andhra Pradesh, 678, Punjab, 677, Kerala, 652, Manipur, 238, Tripura, 118, Himachal Pradesh, 107, Goa, 106, Nagaland, 69, and Arunachal Pradesh, 47.

One State which reported the highest decline was Uttar Pradesh which released 77,205 under-trials while putting in jail 55,287, an actual decrease of 21,918.

It was followed by Madhya Pradesh, where the number of under-trials in prison declined by 748, Karnataka, 643, Uttarakhand, 569, New Delhi, 356, Maharashtra, 257, Mizoram, 156, Meghalaya, 112, Sikkim, 58, Chandigarh, 11, and Daman and Diu, 1.

The Department had no figures immediately from Tamil Nadu, Jammu and Kashmir, Andaman and Nicobar, Dadra and Nagar Haveli, Lakshadweep and Puducherry.

The programme originally scheduled to end on July 31, ”is continuing,” Dr Moily told journalists a few weeks ago.

From citizens’ perspective locking up innocent, law-abiding individuals is as undesirable and indeed repugnant as letting crooks and lawbreakers roam free or shape laws or societies.

UNI MJ NK 1749

Snags in Hiring More Judges To Dispense Justice ! – By Mukesh Jhangiani

                                                                                                    November 3, 2002

Snags in Hiring More Judges To Dispense Justice !

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – Notwithstanding Supreme Court directives, States claim they have ”serious difficulties” in raising the strength of judges to dispense justice to the wronged, whose ranks continue to swell.

Informed sources say the matter also figured at the Chief Ministers’ conference in the past fortnight and the Centre has been requested to make ”necessary submissions” before the apex court on financial constraints in implementing its judgement.

The court judgement on March 21 favoured a ten per cent annual increase in judges strength over the next five years, which is estimated by Law and Justice Ministry officials as likely to cost thousands of crores of Rupees.
Considering population, India is rated by experts to have among the lowest number of judges in the world, only 10.5 per million people in India as against 50.9 in Britain, 57.7 in Australia, 75.2 in Canada, and 107 in the United States.
The never-ending pendencies and all too frequent adjournments– which delay and proverbially deny justice– symptomise the teetering state of the country’s judicial system. It may have unseated a prime minister but it is known to routinely let common criminals– blue collar and white collar– slip away.
Top law professionals acknowledge that the shockingly low– 6.5 per cent– conviction rate in serious crimes tells potential law-breakers they have a 93.5 per cent chance of getting away.
”That,” says Prof Satyaranjan Sathe, Honorary Director of Institute of Advanced Legal Studies, a Pune-based private research group, ”is one of our biggest worries– there is not much out there to deter a violator.”
— January 2, 1975: An explosion at a public function at Samastipur, Bihar kills India’s Railways Minister. The case is transferred to nine judges, statements of two of seven accused have been recorded and key witnesses dropped– as untraceable or not having come forward.
— January 10, 1999: A reckless driver in the Capital mows down six human lives in a night. The accused is pursuing Business Administration studies abroad while the trial continues.
— July 25, 2001: Driving home from Parliament during lunch break, a Member is shot dead in broad daylight as she arrives at her official residence barely a kilometre away. Eleven men charged are in jail, awaiting trial.
— February 23, 2002: A co-accused in shooting a bartender in May 2000 for not serving a drink is arrested as prime accused in the murder of a young man who dances with his sister at a wedding. The first trial is on. The accused is in judicial custody in the second matter, charges for which are yet to be framed.
Not just thugs or criminals, even professionals, administrators or businessmen are not afraid to break the law.
— August 21, 1989: Political foes allegedly plant a report in leading newspapers about huge offshore accounts supposedly held by a future Prime Minister. Leading politicians are named conspirators, but not one is convicted in 13 years. The simplest thing might have been to start by nailing those who planted the story. As an on line critic put it, the Press ”played a nefarious role in broadcasting these forgeries” and should bring out these names.
— March 12, 1993: Explosions rock several areas in Mumbai, killing 300, with RDX smuggled into the country by bribing a customs official Rs 20 lakhs to look away. The trial continues.
— August 8, 1995: A judge orders Delhi Municipal Corporation to compensate survivors of an employee who died after 15 years of abuse, and deduct the payment from the salary of ”the responsible officer.” Lawyers say the system is lazy and ill-equipped to punish officers in such cases; Taxpayers usually end up paying. No lessons are learnt.
— November 19, 1999: An industrialist owning more than one companies is allowed by a court to shut down one of them– a soft drink plant– reportedly after denying wages to hundreds of workers for eight months. Fired employees are in courts seeking statutory wages.
— January 4, 2000: A list made public unmasks thousands of big-spending industrialists defaulting on huge borrowings from State-owned banks, creating non-performing assets now touching Rs 110,000 crore. Cases continue, at further expense to taxpayers.
Examples abound. Years pass before trials take place, giving the guilty ample time to manipulate evidence or break witnesses. After a while memories may fade anyway, making testimonies easier to shake.
Critics argue that such a legal system is itself the best bet for an offender trying to escape punishment.
Even in India’s trumpeted labour laws, for instance, ”deterrent punishment is usually not provided. But even where it is provided, Courts tend to take a lenient view of offences,” said a veteran labour administrator, requesting anonymity.
Labour tribunals, the Government official went on, may help employees against small employers, but ”when we face big employers, we are stuck in technicalities that consume years.”
The chilling reality was spelt out matter-of-factly by an employer to an employee considering legal recourse over years of harassment. ”Remember, I have the organisation behind me, I won’t even have to go to Court. Our lawyers will do that. I will just hand over the file to them. You, on the other hand, will be on your own– whether it takes five years or seven years or longer!”
Lawyers with decades of experience say such attitudes are not altogether uncommon, nor such threats empty.
Critics say India’s judicial system is in a mess, with cases going on and on for years, giving little respite to the wronged and plenty of leeway to wrongers. The issue has often figured in Parliament.
India’s senior and subordinate judiciaries between them have less than 13,000 officers ranging from Munsifs to the Chief Justice and almost 24 million cases pending.
More than a fourth of them– 26.7 per cent– or 5.3 million cases have been in courts longer than three years, Home Ministry officials say.
Worse. More than half a million cases have been pending for over a decade– the bulk in the High Courts of Allahabad, 2,88,472; Calcutta, 1,27,190; Punjab and Haryana, 49,951; Bombay, 28,131; and the Capital, 35,865.
But the figures do not even begin to tell the impact on millions of lives at the receiving end of such dispensation.
Forty-eight years after a complainant filed a petition, Madhya Pradesh High Court was yet to deliver the verdict. Bihar High Court had a 47-year-old case pending, Calcutta High Court, a 43-year-old case, and Rajasthan High Court, a 42-year-old case pending.
Judgements in hundreds of cases are being delivered long after the hearing is over. At one count, Madras High Court alone had judgements pending in 566 cases, 229 of them six months after the hearing. A far cry, indeed, from what victims need !
”The consumer of justice,” India’s Chief Justice once observed, ”wants unpolluted, expeditious and inexpensive justice. In the absence of it, instead of taking recourse to law, he may be tempted to take the law in his own hands.”
In lay man’s terms: One should be able to walk into a court and walk out with a verdict within at most a few months.
Knowing that justice would be swift and punishment severe should deter perhaps a large many potential violators, reducing burden on courts and the exchequer and ending the prevailing cynicism.
Currently, experts fault mainly two key factors– complex and inefficacious laws and procedures and shortage of judges and courts.
They say Indian laws, procedures and practices tend to be cumbersome and ineffective.
The 93-year-old Code of Civil Procedures just amended seeks to compress the time frame for disposal of all civil cases within one year by setting a time limit for every stage of litigation and allowing at most three adjournments.
But it is yet to be seen how the changes work in practice.
On reforms in criminal justice system, a committee set up by the Home Ministry in November 2000 has yet to submit its findings. Its Chairman, V S Malimath, a retired judge who once served as a High Court Chief Justice in Karnataka and then in Kerala, has been busy the last two years writing effective procedures to punish crime.
The Judge recently told a conference of professionals that people ”have by and large lost confidence in the criminal justice system. Wherever I go people ask:
— How is it that when everyone around knows that the accused has committed the offence, the Courts find reason to acquit him?
— Why is it that when one Court finds the accused guilty, the High Court says he is not, and the Supreme Court says he is guilty?
— Why is it that it takes so many years, sometimes decades to dispose of criminal cases?
— How is it that the rich and the powerful who commit serious crimes are seldom punished?”
The paucity of courts is another key problem, experts say. And it’s compounded by vacancies. India’s 21 High Courts with a strength of nearly 650 judges have almost 150 vacancies and 12,000 plus subordinate courts have 1,684 vacancies. Almost a third of labour courts also remain unfilled.
Fifteen years ago, the Law Commission of India in its report titled ‘Manpower Planning in Judiciary: A Blueprint’ recommended raising the strength to at least 50 judges per million citizens.
As the Commission put it, India was persisting in a pattern of conscious judicial under-staffing followed by the British rulers in keeping with their colonial interests.
The findings were shelved. The case arrears kept mounting.
Some eighteen months ago, the authorities launched so-called Fast Track Courts to deal with long pending cases of heinous crimes and those involving undertrials in prison, the idea being that no one should be in prison longer than necessary.
More than 800 Fast Track Courts now working are reported to have cleared nearly 64,000 cases.
Experts say they see no reason why fast Track Courts should not cover undertrials on bail– to put them where they belong. They say the move has either not been considered or has been dismissed not to inconvenience those resourceful enough to obtain bail in heinous offences.
Imagine the effect, if the high and mighty on bail found guilty were sent behind bars– not walking free.
Seven months ago, on March 21, the apex court ordered a phased increase in the strength of judges over the next five years.
In mid-July, the Union Government announced it had ”initiated necessary action” to increase the strength of Judges in Union Territories in compliance with the judgement.
The first sign of trouble, sources say, came at a meeting convened by Finance Minister Jaswant Singh on September seven at which State Finance Ministers voiced ”serious difficulties regarding the Constitutional, financial and administrative issues involved in implementing the Supreme Court judgement of 21-3-2002.”
On an average, a court costs Rs 25 lakhs to set up– Rs 15 lakhs to build the court room, Rs five lakh to furnish it and install computers and another Rs five lakhs to build judges’ residence– and Rs 11 lakhs a year to run.
Officials estimate that the cost of adding the numbers of judges as per the apex court directive may exceed Rs 10,000 crores.
The State Finance Ministers expressed difficulties pertaining to pay scales and other service conditions of subordinate judiciary ”including increase in judge strength and all other matters related thereto.”
The States’ financial woes and fears of going ”broke” trying to implement the judgement, were mentioned by Law and Justice Minister K Jana Krishnamurthi at a news conference on the eve of the Chief Ministers’ conference. He indicated that ”we are having talks” with the States authorities after which the apex court would be approached for directions.
On October 18, the Chief Ministers’ conference ratified the Finance Ministers’ findings without making any counter proposals, leaving it to the Centre to find a cure.
According to sources, Senior officials in the Home Ministry are giving final touches to proposals setting afresh ”additional judge strength required as per pendency and workload,” taking into account existing judicial vacancies.
Sources say the proposals estimate that the number of additional judges needed on the basis of the pendency and the judges’ average case disposal rate is 1,314. Cost estimate: Rs 700 crores.
UNI MJ RP GC1010

Snags in Hiring More Judges To Dispense Justice ! – By Mukesh Jhangiani – November 3, 2002