Delhi Belly: Justice In India – Merely Blind Or Also Brain Dead ?

The shocking release of Mohammad Shahbuddin on bail by the Patna High Court on the 10th of this month raises a disturbing question: Who will judge the judges ? Is our legal system so weakened by “technicalities” that it cannot keep a multiple-conviction criminal in jail ? Here is a dreaded and certified gangster with 40 criminal cases pending against him, of which at least six, involving murder, abduction and assault are under trial. He has been convicted and sentenced to life in two cases and given ten year sentences in two more cases. How has he been allowed bail and set free to tamper with evidence and intimidate witnesses ? Actually, he doesn’t just intimidate witnesses – he kills them. In fact, the case in which he has just been granted bail involves the killing of an eye-witness in a murder case !

No amount of legal skullduggery by expensive lawyers and technical spouting by learned judges can justify a decision which is abhorrent to any fair justice system. So what if the state did not file the chargesheet in time? Should the court not have taken into account the previous convictions, the life sentences, the pending cases, the reputation and antecedents of this Bahubali before releasing this predator back into society? So what if the state did not oppose his bail plea? Is the court guided only by a corrupt and compromised state government to the point where it switches off its own rational faculties? Was the High Court so gullible as to not see through the collusion between the prosecution and the defence? It boggles the mind that someone like Rajesh and Nupur Talwar (sentenced in a controversial judgement, to life for killing their daughter) cannot get bail but a Shahbuddin, with TWO life sentences, can manage bail ! We know the law is blind, but is it also brain dead? As I write this, two appeals have been filed in the Supreme Court for revoking the bail. We await their outcome, and we also hope that the SC asks the Patna HC to throw some light on its outrageous order.

The country is headed for serious trouble, and lawlessness on a epic scale, if even the superior courts interpret laws in such an inconsistent and incomprehensible manner. Because this is not the only judgement that raises eyebrows. Here are a few more judicial gems from the last couple of years:

• In Kerala, a 19 year old student of a technical college was rusticated for living in with a 20 year old man. The charge was ” violation of discipline.” She approached the High Court which upheld the action of the college, holding that “eloping and living together without contracting a marriage” was punishable behaviour. The court not only was oblivious of the fact that these were two consenting adults in the 21st century, but it also showed scant respect for the Supreme Court order which has recognised live-in relationships as socially and legally proper. A court should be delivering justice and not moral sermons.
• Last year Arvind Kejriwal, the besieged Chief Minister of Delhi, called the Delhi cops “thullas.” A constable filed a defamation case against him, the trial court found a prima facie case against the CM and summoned him as an accused. Kejriwal appealed to the Delhi High Court which asked him to explain what “thulla” meant since, even after an exhaustive search of all Hindi dictionaries, they could not find this word ! If the word does not exist in any dictionary how did the trial court come to the conclusion that it was defamatory and damaging enough to summon the CM ? Surely, the practice of law does not mean the abdication of common sense.
• Salman Khan was famously acquitted in the Mumbai hit-and-run case by the Bombay High Court (he was convicted by the trial court) because the hon’ judges did not believe an eye-witness (a policemen, no less) who stated that Salman was himself driving the car. Should not the court then have revealed who in fact was driving the car? Were the two dead labourers run over by the Phantom, the Ghost-who-walks ? And was he also the mysterious driver in the black buck case who could not be located, thus leading to Mr. Khan’s acquittal in this case too ?
• During the run up to the elections in 2014 a judge of the Allahabad High Court ordered that caste based gatherings were illegal ! He obviously did not let petty considerations like constitutional provisions stand in his way. The order was stayed by the Supreme Court.
• Similarly, last year the Rajasthan High Court ordered that “santhara” (the Jain ritual of fasting and obtaining samadhi) was illegal since it amounted to attempted suicide. One must laud the Court’s compassion and humanism, but one also has to look askance at its disconnect with reality. There was an outrage and the Supreme Court, well versed in this juridical fire fighting by now, stayed this order too.
• MS Dhoni, the Indian cricket captain (at least as I write this) appeared in the cover of a magazine as an Indian God and was promptly summoned by a court for “hurting the religious sentiments” of the complainant. Once again, he was rescued by the Supreme Court. Another trial court in Bihar summoned the God Hanuman a few months ago for encroaching on public property !
• In the second longest soap opera (after “Saas Bhi Kabhi Bahu Thi”) which is currently playing to packed houses – I refer to the alleged money laundering case against a serving Chief Minister – the middleman who invested this gentleman’s allegedly ill gotten gains has been in jail for two months and is being tried, but the principal accused has neither been arrested nor being tried ! I am not passing judgement on this CM – he may well be totally innocent; I am only emphasising the absurdity of a legal process that jails the middleman but allows the main accused to remain free. Should the court trying the middleman not be asking the question: Where is the main accused ?

A lot of this smorgasbord of legal inconsistencies is due to ridiculous laws that allow the police to arrest without any evidence or even investigation (sex crimes, domestic violence,dowry), that lay a premium on so called “religious feelings”, that criminalise defamation, that distinguish between marital and non-marital rape, that restrict free speech, and so on. A lot is also due to a corrupt, politicised, avaricious and ignorant police which twists every law to serve its own purpose, or the purpose of its masters, regardless of court rulings: continued registration of baseless sedition and Information Technology Act (Section 66) cases testify to this blatant violation of law laid down by the highest courts. But it is precisely because of these two reasons that we expect the judges to be even more vigilant, inquisitorial, distrustful; it is why we expect them to look behind the mere letter of the law to its true spirit , meaning and intention; it is why we expect them to constantly keep a finger on the pulse of society; it is why we expect them to take stringent action against the officials who misuse the laws, it is why we expect them to be more pro-active in ferreting out the REAL truth in a case. Unfortunately, the courts are failing us.

Some of the reasons for this failure are: excessive workload, systemic delays, an untrustworthy and often influenced prosecution, and an uncooperative bar. But they are not the only, or even the main, reason. The primary reason why the judiciary is not being able to respond effectively to a rapidly deteriorating justice system is that it has locked itself up in an ivory tower under the specious justification of “independence of the judiciary.” It has cocooned itself in a comfortable world of near immunity from the law and public opinion by insisting on the Contempt of Court Act and ruling that the executive cannot take legal action against any judicial officer without prior approval of the High/Supreme Courts. It does not look kindly at any criticism of its functioning or judgements. It rarely takes any action against its own; a bureaucrat can be prosecuted and imprisoned for even a genuine mistake (or even for no mistake, witness the H.C. Gupta affair) but it is rare for a judge to be hauled up for even a patently irrational judgement. In the process it has distanced itself from the people, lost its credibility, become insensitive to public opinion. (I recollect reading about a case in Britain a few years back where a High Court judge was compelled by public outrage to resign after it came out that he had reserved more than one hundred judgements. It is impossible to conceive of a similar situation in India where orders are kept reserved for months and even years, where judges routinely ” recuse” themselves from cases( sometimes after multiple hearings) without a word of explanation.). For any system to work properly it must be accountable- if not to the government then at least to the people, if not even that then at least to itself. Our justice system has become almost totally unaccountable and that is the crux of the problem. It has become whimsical, erratic, unresponsive. The biggest alibi for criminality today is the cliche mouthed by all those who are complicit, in one way or the other, in breaking the law or in protecting the criminals : “The law will take its course.” It is almost an assurance that nothing will happen. It is also why nothing ever happens to the powerful politicians, big industrialists, celebrities: it is an endless list of the powerful, the rich and the well connected who have the power to turn the “course” of the law any which way they want. Their cases drag on for years till all evidence (and witnesses) go missing; multiple appeals and injunctions ensure that no finality is ever reached; and more often than not they are the beneficiaries of a judicial benevolence (the Nandas and Ansals, for example) never shown to the other 350,000 undertrials who have not even been convicted! It is also the reason why vigilantism and flagrant disregard for the law is becoming rampant-when the state will not act legally the people will act illegally. Its a pity because, with the executive and the legislature having almost disintegrated, it is only the judiciary that is keeping our sorry democratic edifice still standing; if it too goes the way of the first two, then our tryst with destiny will be quite different from what Nehru had envisioned in a better time.

Avay Shukla

The author retired from the IAS in December 2010. A keen environmentalist and trekker he has published a book on high altitude trekking in the Himachal Himalayas: THE TRAILS LESS TRAVELLED. His second book- SPECTRE OF CHOOR DHAR is a collection of short stories based in Himachal and was published in July 2019. His third book was released in August 2020: POLYTICKS, DEMOCKRAZY AND MUMBO JUMBO is a compilation of satirical and humorous articles on the state of our nation. His fourth book was published on 6th July 2021. Titled INDIA: THE WASTED YEARS , the book is a chronicle of missed opportunities in the last nine years. Shukla’s fifth book – THE DEPUTY COMMISSIONER’S DOG AND OTHER COLLEAGUES- was released on 12th September 2023. It portrays the lighter side of life in the IAS and in Himachal. He writes for various publications and websites on the environment, governance and social issues. He divides his time between Delhi and his cottage in a small village above Shimla. He blogs at http://avayshukla.blogspot.in/