Repairing the country’s ‘broken down’ judicial system

Whenever the occasion arises, we like to pat ourselves on the back, like we did recently on the 70th anniversary of the Indian Republic. 1950 was also the year we adopted the Constitution, in which it is stated that India is a country governed by the rule of law. But is that really so? Sadly, the reality is that our judicial system, as it presently operates, is seriously flawed. We have good laws but they are not adequately implemented. A recent video circulating on social media has a revealing statement by one of the most respected judges around, former Justice of the Supreme Court, Bellur Narayanaswamy Srikrishna.

He came to public notice when he was still a relatively junior judge of the Bombay High Court. In 1993, he was put in charge of the Commission of Inquiry into the riots that took place in December 1992 and January 1993, in Bombay, as it was then called, in which around 900 people died. The riots followed the destruction of the Babri Masjid in Ayodhya, with a second round taking place soon after. Justice Srikrishna was given the onerous and delicate task of investigating their cause. He took five years over this, examining victims, witnesses and alleged perpetrators. Ironically, his detractors from the left-secular parties felt that since he was a devout and practising Hindu, he would be biased in favour of the Muslim-baiting, communal Shiv Sena. It turned out to be just the reverse. Midway through the investigation, the Shiv Sena-ruled state government must have got wind that the inquiry was going against it. So, it abruptly disbanded the Commission, probably fearing what it would reveal. A public outcry followed and the then Prime Minister, Atal Bihari Vajpayee, reconstituted the Commission, with its terms of reference extended to include the Bombay bomb blasts in March 1993. The Shiv Sena was then allied to the BJP.

The Srikrishna Commission, as it became known, severely indicted the Shiv Sena, holding it mainly responsible for the second round of riots, and also to a large extent the first round as well. However, he held that the secular and tolerant foundations of the city were intact, though they had been shaken by the riots. The Shiv Sena angrily rejected the Srikrishna Commission recommendations outright. As the report of an inquiry is not binding on the government, the Commission’s recommendations could not be directly enforced. Till now, they have neither been accepted nor acted upon by the Maharashtra government. In fact, many of the indicted policemen were actually promoted by the state government and indicted politicians continued to hold important political positions. A Shiv Sena MP, Madhukar Sarpotdar, was sentenced in 2008 by a Mumbai court to a year’s imprisonment, for his role in the riots, but he was immediately granted bail. He died two years later, without serving his sentence, a clear travesty of justice. Srikrishna was later appointed as Chief Justice of the Kerala High Court and then a judge of the Supreme Court before he retired in 2006.

Returning to the video in which he figures, his peg is the recent horrific rape and murder of a 26-year-old woman by four monstrous men in Hyderabad. After raping and killing her, they burnt her body so as to destroy any forensic evidence linking them to the crime. They were also smart enough to avoid the CCTV cameras. Even if they were caught and brought to trial, it would take many years to convict them as there was no hardcore evidence against the killers. A tough cop, VC Sajjanar, allegedly decided to take the law into his own hands. Leading a police party, they gunned down the four men. “The law has done its duty,” announced a gloating policeman. The “encounter” was lauded by the Hyderabad public. Why? Because the public has lost confidence in our judicial system and this is what drives policemen like Sajjanar, answers Srikrishna.

Cases take two to three decades to be settled in Indian courts. The criminal case against Sarpotdar, for instance, took 16 years! There must be a faster turnaround of cases. Currently, there are almost a staggering 30 million cases pending in various courts across the country, and more than 60,000 matters pending before the SC. Another shameful statistic: close to 70 per cent of our jail population consists of undertrial prisoners, whereas globally the percentage of such prisoners is only 27 per cent. Justice delayed is clearly justice denied. The rule of law is not possible without an effective judicial system capable of enforcing rights without undue delay. Only then can public confidence in justice be maintained. Srikrishna has two suggestions that he says can be quickly implemented to repair our judicial system that, he says, has “broken down”: Restrict appeals to just three, as in the US, and drastically cut down “adjournments”. He adds that judges must work harder and not take so many holidays. Going to court at 10.30 am and returning home at 4, with a lunch break in between, is not acceptable, he says, nor are all kinds of holidays, for summer, Diwali, Dasehra.

I would like to add another suggestion. When frivolous cases are registered, they should not be entertained by the police or the courts because these cases are usually put there to harass. But if those cases do go to court and are eventually dismissed, the harassers should be penalised and made to pay the costs that the defendant has incurred. A judicial system that is “broken” cannot be repaired overnight but at least a start can be made by implementing Justice Srikrishna’s suggestions. Otherwise, “encounters” will continue to take place and the public will continue to applaud them.