Rule of Law? Really?

Its fashionable to begin articles these days with a disclaimer (it makes one appear more profound), so let me confess too. I am no law graduate, never having enrolled myself in the ” La Fucklety” of Delhi University, as the Law Faculty was lovingly called in my days. My knowledge of law is also limited: I cannot tell a habeas from a corpus and don’t even know the difference between a solicitor and a procurer. But I have of late been getting the feeling that you don’t need to know law to realise that all is not well with our juridical ecology, that the pedestal on which we have ensconced our judiciary has far too many bird droppings on it- in short, it is impossible to make sense of either some of our laws or even some of the judgements of our higher courts.

I am not talking here of the Courts’ refusal to decriminalise homesexuality or to disallow euthanasia in terminal cases, both important facets of a progressive value system which more and more countries are increasingly adopting but we seem to be shying away from because of an ossified mind set. I am not talking either of a government( both past and present) that prefers to flounder in legislations of the last two centuries rather than devise laws for the 21st century. These are serious crevasses in our legal system into which thousands have fallen, but they will have to wait for another day.

I am addressing today the more immediate issue of how we treat different classes of accused, even though we are fed, ad nauseum, the lie that the law is the same for everyone. I am increasingly beginning to feel that the law is putty in the hands of skilled and expensive lawyers and that there is no consistency in the judgements handed down from those lofty heights.

How else does one explain that in this country a convicted and sentenced felon can get bail while a person who is not even convicted is denied bail? Both Mr. Lalu Yadav and Ms. Jayalalitha have been convicted and sentenced but have been released on bail, simply because they have/ are appealing their convictions. Why then have the Talwars not been released, whose circumstances are exactly similar? I am no apologist for Tarun Tejpal but I am one for equality before the law, and therefore I am compelled to wonder why he has been locked up since one year even though he has not been convicted and his trial has a long way to go? Because one set relates to corruption( not heinous) and the other to violent crimes? Then why were Kanimozhi and A Raja imprisoned for a year( their charge was also of corruption)? Because they could influence witnesses? Really? It stretches one’s credulity to believe that the latter two could threaten/bribe witnesses and Lalu and Jayalalitha cannot.
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As I said earlier, try as you might it will be impossible to locate any thread of consistency in the law applied in these cases. We are told that each case is different-yes, indeed, but isn’t the law supposed to be the same? I do discern, however, a faint and nebulous thread running through these cases, and perhaps you do too- if you are a politician the law will treat you with kid gloves, and if your case is picked up by Arnab Goswami and Karan Thapar for prime time panel discussions then you are damned! This is a constantly emerging pattern and cannot be a coincidence. The Talwars and Tejpal (and Mr. Pandher-let us not forget this gentleman who has been acquitted in almost all the cases against him but has been reduced to a cadaver after seven years in jail)-they were dead meat the day the prime time mob got after them, and the law obliged.

The grant of parole is another mystery I cannot fathom. Tens of thousands of under-trials cannot even think of getting parole but the privileged have no problem, even though they are convicted and sentenced. A Chautala gets the reprieve on medical grounds and then goes on to campaign for elections: our judicial conscience is assuaged by sending him back to jail AFTER the campaigning period is over! A Manu Sharma (sentenced to life for murder, no less) repeatedly obtains parole for attending funerals, weddings and taking exams. A Sanjay Dutt benefits likewise because his wife is supposed to be ill, though she is otherwise seen partying. Two Italian marines are given a vacation to celebrate Christmas with their families in Italy- if bilateral relations make this imperative, then why charge them in the first place: why not simply accept the crores offered by Italy as compensation and give the two a Presidential pardon? Why first bring them into the legal system and then twist this system and make a mockery of it?

Something else that addles my jurisprudence challenged brain is the constant interventions by higher courts in the proceedings of trial courts, somewhat similar to what Arnab Goswami does to his panelists. With more than 30 million cases pending in various courts as of 2013, should trials be stayed on the flimsiest of applications? A case which immediately comes to mind is the National Herald case against the Gandhi clan. Taking cognizance of a complaint the trial court issued summons to the accused for appearance almost three months ago. The accused immediately approached a higher court (no surprises here!) and got a stay-and added another number to the pendency. The case has not moved forward an inch-which suits the Gandhis just fine. Consider another odd case: Salman Khan was CONVICTED by a trial court in the black buck poaching case two years ago but the sentence was suspended by the Rajasthan High Court without even deciding his appeal. The Rajasthan govt. has challenged this in the Supreme Court. The main appeal is yet to be heard. Years have been unnecessarily added to the final disposal of this case enabling our dabang hero to add a few dozen more crores to his kitty. And this is in addition to the dozens he has already added because his hit-and-run case in Bombay has already taken 12 years and reached nowhere, because mid-way the honourable judge decided to add fresh charges against the thespian, and the whole trial had to be started de nouveau. Why can our courts not realise that delays benefit only the rich and powerful, and then do something about it?

It has become almost the norm, if your pockets are deep enough and your connections extensive enough, to challenge every interim order of a trial court at a higher forum. Appeals are filed against charge-sheets, summons and warrants, framing of charges, summoning of witnesses, nature of evidences, and just about every excuse the fecund mind of a well paid lawyer can conjure up. I am unable to understand why these appeals are entertained at all-why not simply let the trial go on and let these issues become the causus belli in appeal when the trial court passes its final order? I have no difficulty in understanding why the lawyers do so- after all, if you are paid a few lakhs for every appearance( in court) your mind will be as fertile as a vermicomposting pit. But why do the courts allow this to happen?

How is it that politicians who work 16 hours a day while in office and corporates who party for just as long, invariably develop heart/ blood pressure conditions the moment they are sent to jail? And why are our courts so accommodating as to send them to the nearest five star hospital ( in the comfort of which they can plan their next interlocutory appeal)? Why can they not be treated, if treatment is required at all, in the jail hospital or the nearest govt. hospital? After all, govt. hospitals are where law abiding and unconvicted( as yet) citizens like you and I go to-why not these hot shots? If the courts sent them there instead of molly coddling them I can guarantee that, given the conditions of our govt. hospitals, these worthies would be screaming to be sent back to their VIP cells in Tihar and such requests would end once and for all.

And finally, about our laws and law makers. About 150000 Indians die in traffic accidents every year, victims of over speeding, drunk driving, unlicensed drivers, rash driving and other similar conscious acts. And yet the perpetrators of these deaths obtain bail within a few hours and, if convicted at all, can get a maximum sentence of two years only. In other words if you kill somebody with a six inch pistol or a nine inch knife weighing 500 grammes you will get life or death, but if you know your law you would be better advised to kill someone with a four meter projectile weighing two tonnes; chances are you would go scot free or spend just a year or two in jail, even less if you develop high blood pressure or an enlarged prostate or decide to take your bar council exams at this propitious moment. Why cannot the law be amended to make such a deliberate act( it IS deliberate if you drive while drunk or break the speed limit or do not have a driving license) culpable homicide at least?

In the USA such offences come under a separate category termed vehicular homicide, an eminently sensible formulation. What prevents the government from bringing in a similar law, or the Supreme Court from ordering the govt. to do so?

Civilisations cannot exist for long without a system for imparting justice that is fair, equitable, affordable, accessible; a system that is not hijacked by the rich or powerful few. In India our much vaunted justice or judicial system sadly lacks all these attributes. Furthermore, it is not merely laws that ensure the rule of law: its guarantee lies in the intellectual integrity of its practitioners-the plaintiffs, lawyers, the judges; here again there is much that is found wanting.
The time has come for us to tackle this creeping malaise. Otherwise there are Alternative Dispute Redressal Mechanisms( ADRMs) waiting in the wings to take over. These comprise a range of mediums or agencies, none of them compatible with a progressive society: the Taliban, The Khap Panchayat, the D-company, the Vigilante, the Encounter Specialist, the Dirty Harry cop. Their prototypes have already arrived. Its time for us to wake up.

Avay Shukla retired from the Indian Administrative Service in December 2010. He is a keen environmentalist and loves the mountains. He divides his time between Delhi and his cottage in a small village above Shimla. He used to play golf at one time but has now run out of balls. He blogs at http://avayshukla.blogspot.in/

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13 Comments

  1. says: Manik Sharma

    If comparisons are any sort of measure of the stick, the Indian Judicial system is walking with, look no further than the Oscar Pistorius 49 day trial. The sentence being scoffed for leniency aside, the verdict was delivered swiftly. An Indian court would have abandoned the trial as soon as Mr. Pistorius threw up upon hearing the autopsy report, 3 days into the trial – on basis that he was sick. The law, at least in our country barely rules. We know who rules and why.

  2. says: Mukul

    You may like to add Vikas Yadav to the hall of shame of paroled criminals! But for his making news for wrong reasons, his frequent paroles would have stayed buried in some file.

    You have just touched upon the massive and chronic ill of judicial system- adjournments. Even in cases where the law has placed a time limit for the disposal of the case, viz. in cheque bouncing cases, no judge has ever been ticked off for not sticking to the deadline. The result is that such cases also pile up.

  3. says: B.S.Raghavan, IAS(Retd)

    The Law Commission has been set up precisely to take account of the deficiencies in the country’s legal system and recommend measures to improve it. As I see it, the following points arising from Avay Shukla’s article are eminently worthy of being brought to the notice of the Commission:

    (1) Once the trial starts, it should proceed without interruption. If the parties to the case have any objection to, or disagreement with, any orders passed or directions given by the trial court, they should be urged only at the time of appeal, if any, against the verdict. The Supreme Court should not intervene at any stage of the proceedings by taking up various types of issues raised by the accused to delay or sidetrack proceedings.

    (2) No appeal against the trial court verdicts should be entertained by higher courts except on grounds of a substantive misappilcation or misinterpretation of law or mala fides or misrepresentation of facts at the time of trial.

    (3) The Supreme Court should, as a rule, refrain from dealing with appeals for which the High Court should be the final forum. In any case, it is a derogatory to the dignity of the Apex Court to be hearing plaints for bail and other ancillary issues, while lakhs of cases of major consequence are awaiting its determination.

    (4) The entire scheme of sentences laid down in the IPC should be reviewed and revised upwards, and as in the USA, sentencing guidelines formulated for uniform application in all the courts

    The present Chairman of the Law Commission, Mr. A.P.Shah, is a very forward-looking, enlightened jurist, responsive to new ideas, and he will certainly give the suggestions his utmost consideration

  4. says: George Isaac

    The problem is that the general public is completely excluded in the selection of judges to the Supreme Court and the High Courts -the judges selected to these courts by the government, prior to 1993, and my the Collegium of judges of the Supreme Court have ignored the consequences of their decisions for the general public, because they are in no way obliged to the general public for the positions they hold.

    Public estimations of the impartiality, independence and integrity of the candidates plays a key role in the selection of judges in the U.S.A

    The amendment to the Code of Criminal Conduct in 1976 which deleted from the criminal courts, juries consisting of members of the general public, selected for their impartiality, independence and integrity – destroyed the impartiality and independence of our criminal courts and have made them instruments of the state – it has made it possible for the state to convict and impose savage penalties on citizens for the alleged contravention of arbitrary and irrational rules, which are not defined in the interest of the general public, on the strength of evidence concocted and fabricated by the proseuction,

    The Indian courts are not instruements of justice – they are instruments the state uses to terrorize its citizens –

    The solution –
    1 remove the Contempt of Court Act
    2. give citizens, the general public a dominant role in selecting judges to the Supreme Court, the High Court and the district courts – as in the U.S.A
    3. restore juries consisting of impartial and independent citizens in the criminal courts.

  5. says: S.G.Mani

    I agree with the analysis 100%
    whom to address these issues? every one who has been involved in currption need to be booked, convicted and money recovered – not like the case of Lallu who has amassed wealth amassed public money and when convicted money is not recovered by attaching his property – like the case of Subroto. Why? why he is allowed to be at large?
    Why court should take 18 yrs to decide the case of Jaylalita. “Justice delayed is justice denied” is not in the knowledge of Judge.In 18 yrs the circumstances have changed.
    Justice has to be within a time period.
    criminal cases and the curruption cases has to be time bound.
    It has become a practice to keep giving dates til the case is out of mind of public and the c

  6. says: Maj M Panthaki(Retd)

    I stand by you completely, Mr Shukla, for everything You have said. Am one of those many who are going tho’ the ‘deadly’ delays in our courts. (Have used the word ‘deadly’ because four from each side are not going to know the result.)
    Ten years in lower court, ten in higher one and five at the top, not knowing if it will be admitted.
    As you have mentioned about the judiciary, why are they let off for the wrongs they do ? The lower courts gives judgement on Hindu law when all involved are Christians? Of course the higher one over rules it. But the absolutely wrong judgement giver goes scot free!!! 25 years are, I suppose, is a very standard period.
    With the present regime having started some procedure, hope the next generation doesn’t have to suffer.

  7. says: Brig Rakesh Sharma

    An extremely objective article with acute understanding of the malaise affecting the legal system. A system meant for a slave nation has been imposed on us and we are living with it since independence; a long tome by any stretch of imagination. Poor, deprived and honest are suffering and crooks, cheats and powerful are benefiting from it. The biggest beneficiary is the Judiciary itself followed by the corrupt and unethical executive. If there is one agency which has evaded penance or punishment for its acts of omission and commission it is the Judiciary. They are the most powerful; even more than the sacred constitution as they interpret the constitution and can twist, turn and interpret to their interest. All power corrupts and absolute power corrupts absolutely so said Mao Tse tung and it is applicable to our Judiciary and particularly to the Apex Court. Just see the latest black Money case. the Govt had given the list to the SIT and the Supreme Court wasted public, executive and their own time and effort in sending a copy of the list again to the SIT; just for some browne points with gullible masses. They were quiet for nearly 3 years in UPA 2 time as the congress has always bailed out the corrupt senior judges by not allowing impeachment and suddenly they have become hyper active during the few months of NDA/ BJP rule. the possible reason could be the draft legislation on Judicial appointments and accountability. They compromise on their own judgments with impunity and allow false Affidavits to pass muster. what happened to few cases which highlighted the sufferings of interns and junior judicial officer; no body will come to know. In US and Britain most case finish in 365 days. In our case you have to minimum add a zero; since zero was discovered by India. ‘Satyamev jayate’ is followed in its breach. God help us.

  8. says: Air Commodore Pankaj Mehrotra VSM

    As most Presiding Officers of General or District Court Court Martials will agree, it is possible for justice to be delivered and punishments awarded ( and NOT revoked ) quite speedily. Law of the land is meticulously followed. Thorough preparation by the prosecution, adequate care in framing charges and comprehensive guidelines for DEFENSE OF THE ACCUSED make sure of a disciplined and a fair trial. I had the occasion of being Presiding Officer in a GCM wherein a commissioned officer , charged with ‘Molestation of a Civilian Lady Employee’ and a few other charges related to misconduct was convicted within 60 days during which a spirited defence counsel could not succeed in delaying the case of the prosecution and the charged officer was stripped of his Rank Bagdes , cashiered from service and jailed fortwith. Presidential review was conducted and the judgement withstood judicial scrutiny. CAN WE NOT LEARN ANY LESSON FROM THIS AND NUMEROUS OTHERS IN ALL ARMS OF THE MILITARY? Wasn’t ‘NIRBHAYA RAPE CASE’ cracked by DELHI POLICE and conviction ensured by meticulous effort of so many agencies involved? The nation’s lawyers’ community must decide whether the butter and jam and cheese and tikki on their bread is more important or the state of our nation. So long as the Politics of the country is dominated by LEGAL EAGLES, we will continue to remain in the morass of ” SATYAMEV ‘ DELAYED ‘JAYETE.
    Let Higher Appointments in Judiciary be ELECTED, Penalise frivoulous adjournment by stern dispensation including dismissal or de-frocking or using graded suspension of professional licence, Rewarding quicker disposal of cases, Have hearings in rural areas and even far flung town ships, Have seperate courts for resolution of PROPERTY DISPUTES, Have more TRIBUNALS & Benches, EMPOWER PANCHAYATS , Make Sure that in High Courts when ‘final arguments are being advanced by the learned counsels and sentencing is done’ then presence of reps of lower court concerned with the case ‘and’ the Supreme Court/ Appelate Body nominees are present as OBSERVERS to render specialist legally tenable advise on the matter, RE-instate the institution of JURIES drawn from the Public, implement rigourously “Law of TORT” to discourage instances of in-efficient delivery of services and justice, are a few of the suggestions humbly offered by a naive , outdated retired service officer. Rule of Law is paramount….Not the RULE OF LAWYERS. …And let not the LOK-PAL become a BLOCK – PAL in the circus of IDEAS circulating in the corirdors of Power, Media and Public Domain. Regards.

  9. says: Dr Y N I Anand

    Mr Raghavan wrote, “(3) The Supreme Court should, as a rule, refrain from dealing with appeals for which the High Court should be the final forum. In any case, it is a derogatory to the dignity of the Apex Court to be hearing plaints for bail and other ancillary issues, while lakhs of cases of major consequence are awaiting its determination”.

    I would like to add the following:

    If at all the Highest Court would like to intervene, then the bail cases should follow the general queue. By this, if at all the case finally comes up for hearing during the life time of the convict, he/she would hve already completed the jail term and would like to withdraw the case!

  10. says: T K DAMODARAN

    Even if the Courts give favourable verdicts, the authorities concerned try to mis-interpret the judgement taking advantage of the passing remarks of the said court orders. Recently, the Apex Court has given a verdict against the appeals made by a group of Central Government Pensioners seeking the intervention of the court for getting the pension arrears approved by the Govt (Ministry of Finance) effective from 01-01-2006 based on the 6th CPC in respect of Pre-2006 Pensioners. The above said court order was mis-interpreted by the authorities concerned stating that only the litigants are only eligible for payment of arrears wef 01-01-2006, other pensioners (non-litigants) belonging to the same category would not be eligible for the same. If the court had given a clear verdict . judgement stating the all similarly placed pensioners are eligible for the payment of pension arrears wef 1/1/2006 such situation would not have happened. That means, at times, the judiciary are also not worried about the entire people involved

  11. says: Harit Trivedi

    Lovely article Sir!! But will the concerned ever read it, though they must be aware? Is there anyone responsible? Can anyone in authority monitor judgments and take action against those who pass horribly wrong judgements, wither illogical, biased or those without application of mind? A monitor is required, those trapped in the system lose a part of their life, literally.
    I am just letting thoughts roam free and thinking that this should have been thought about decades ago.

  12. says: Dhirendra Krishna

    Let us look into the root-causes that have resulted in total mess in judiciary, in recognition of the fact that situation is only getting worse and there is need for drastic changes.

    Government is the major litigant and many cases arise from injudicious actions by civil servants. Even when Government looses the case before judiciary, there is no adverse action or stigma on the officer whose mistake has resulted litigation. Basic issue, therefore, is how to make the officers act in judicious manner?

    Judges are in no hurry to decide the case, resulting prolonged litigation. Can any thing be done to make the judiciary “result-oriented”? Can indecision be treated as “non-performance” of duty by the Judges? What can be done to ensure better performance by judiciary?

    Serving Judges ( at all levels) and the Advocates can not be expected to find solution to the problem- they appear to have a vested interest in status quo. No one can afford to antagonize and express contempt. Who will bell the cat?

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