Tag Archive | Public Interest Litigation

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

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CJI Against ‘Undue’ Haste In Dispensing Justice – By Mukesh Jhangiani

                                                                                                    July 28, 2006

CJI Against ‘Undue’ Haste In Dispensing Justice*

By Mukesh Jhangiani
United News of India

New Delhi (UNI) – India’s Chief Justice has advocated more judges, more courtrooms and double shift courts, but cautioned against ”undue haste” in dispensing ”justice.”

   Delivering Justice Sobhag Mal Jain Memorial Lecture on Delayed Justice on Tuesday, Justice Y K Sabharwal acknowledged delays and aging backlogs.

The tone was set by Himachal Pradesh Governor V S Kokje who was emphatic that ”delay defeats justice.”
A former Judge, Governor Kokje cited the near absence of adequate compensation to victims and wondered if it’s ”justice at all.”
Many a times, he said, a winner is really a loser considering the costs and years spent in courts.
Supreme Court Bar Association President M N Krishnamani, in introductory remarks, criticised outright dismissal of a bulk of matters filed before the apex Court, calling it just ”quantitative” justice.
A Senior Advocate, Krishnamani also criticised long adjournments, pointing out that it made little sense to adjourn a matter for a year because someone is a bit indisposed.
Such practices contribute to delays, he said.
Justice Sabharwal acknowledged Courts’ obligation to deliver ‘prompt and inexpensive’ justice to those who suffer physically, mentally or economically and seek redress without taking law into their own hands.
He recounted judges’ role in enlarging and enforcing human rights and handling Public Interest Litigation, saying it brought courts ”closer to the oppressed and weaker sections of the society.”
But he said Indian Courts ”held in high esteem” around the world, faced ”growing criticism” at home– sometimes uninformed or ill-informed.
”There is growing criticism, sometimes from uninformed or ill-informed quarters about the inability of our Courts to effectively deal with and wipe out the huge backlog of cases.”
He said delay in dispensing justice ”is a major problem being faced by Indian Judicial system.”
He acknowledged how process-induced delays result in miscarriage of justice.
”Long delay,” Justice Sabharwal said, ”has also the effect of defeating justice in quite a number of cases. As a result of such delay, the possibility cannot be ruled out of loss of important evidence, because of fading of memory or death of witnesses.
”The consequences thus would be that a party with even a strong case may lose it, not because of any fault of its own, but because of the tardy judicial process, entailing disillusionment to all those who at one time, set high hopes in courts.”
He said delay in disposing of cases affected not only ordinary cases but even those which by their very nature, call for early relief.
”The problem of delay and huge arrears stares us all and unless we can do something about it, the whole system would get crushed under its weight,” Justice Sabharwal said.
At the same time, he said, ”we must guard against the system getting discredited and people losing faith in it and taking recourse to extra legal remedies with all the sinister potentialities.
”Many times such inordinate delay contributes to acquittal of guilty persons either because the evidence is lost or because of lapse of time, or the witnesses do not remember all the details or the witnesses do not come forward to give true evidence due to threats, inducement or sympathy.
”Whatever may be the reason, it is justice that becomes a casualty.”
Experts have long voiced concern over poor conviction rate– 6.5 per cent– in heinous crimes as a factor that encourages criminal behaviour rather than deter it.
Justice Sabharwal told audience that India’s international trade and other commitments made it ”necessary to have an efficient and effective justice delivery system at affordable costs.”
But, he said, courts have no magic wand to wipe out the huge pendency of cases nor can they ignore injustices and illegalities.
”If the courts start doing that, it would be endangering the credibility of the Courts and the tremendous confidence they still enjoy from the common man.”
He said volumes of Law Commission recommendations and expert reports have not enabled the system to bridge the gap between institution and disposal of cases or even make a dent in the mountain of arrears.
The inadequacy of research on Indian legal and judicial system was also criticised by Governor Kokje who said he was trying to help remedy it in Himachal institutions.
Presumably alluding to Law Commission suggestions to quintuple the number of Judges, he pointed to judicial vacancies and said if finding ten judges is difficult where would one find fifty.
Among steps Justice Sabharwal stressed were filling high court vacancies, setting up more courts, holding courts in two shifts, managing caseloads, giving judiciary financial autonomy, settling disputes through mediation and other ways and plea bargaining.
Justice Sabharwal suggested making it a practice to estimate additional facilities needed to adjudicate rights and offences new laws create– as Americans do.
He also suggested using computers, Internet and video conferencing, sharpening judges’ adjudicatory skills through training, curbing frivolous government litigation, framing rules for easier service of summons and making adjournments cost.
For instance, the sanctioned strength of High Court Judges is 726, and the actual strength 588, leaving 138 vacancies. The sanctioned strength of subordinate judges is 14,582 and the working strength– on April 30, 2006– 11,723, implying 2,860 vacancies.
He made it clear that the backlog ”cannot be wiped out without” hiring more judges, particularly when the institution of cases is likely to increase, not come down, in coming years.
”We will have more litigation in future when those sections of the society, who have remained oppressed and unaware of their legal rights, become more aware of their rights due to spread of legal literacy, and increased awareness equipped by effective legal aid and advice.”
”While laying stress on the urgent need of elimination of delay and reduction of backlogs, we cannot afford to act in undue haste so as to substitute one evil for another one.
”Stress on speed alone at the cost of substantial justice may impair the faith and confidence of the people in the system and cause greater harm than the one caused by delay in disposal of cases.”
His message: the quality of justice must not suffer on account of quantity.
UNI MJ