Sunday, August 24, 2014

indian failed legal system

IssuesEdit

According to the World Bank, "although India's courts are notoriously inefficient, they at least comprise a functioning independent judiciary"[8] A functioning judiciary is the guarantor of fairness and a powerful weapon against corruption. But people's experiences in fall far short of this ideal. Corruption in the judiciary goes beyond the bribing of judges. Court personnel are paid off to slow down or speed up a trial, or to make a complaint go away. Judges are also subject to pressure from above, with legislators or the executive using their power to influence the judiciary, starting with skewed appointment processes."Judges appointing judges has become a total failure and it is become like a club membership",opines former judge of the Madras High Court Justice Chandru.[9]
Citizens are often unaware of their rights, or resigned, after so many negative experiences, to their fate before a corrupt court.
Court efficiency is also crucial, as a serious backlog of cases creates opportunities for demanding unscheduled payments to fast-track a case.[10]

Judicial backlogEdit

Indian courts have large backlogs. For instance, the Delhi High Court has a backlog of 466 years according to its chief justizce.[11] This is despite the average processing time of 4 minutes and 55 seconds in the court.[11] InUttam Nakate case, it took two decades to solve a simple employment dispute. However it need to be mentioned that the concept of backlogs doesn't describe the actual reason for so many cases lying in the courts. Rather the term "backlog" has been misused and the term "pendency" is the right word for describing the large number of cases pending in the courts today. As could be understood, the largest number of cases that are actually pending in the Indian Courts are that of minor Motor Vehicle Cases, petty crimes such as stealing, abusing, insult, slap, etc. It is an established fact which the Govt. of India accepts that there is 40% shortage of judicial staff. Opposition and ruling party's corrupt politicians profit from the delays in the system.
On 12 January 2012, a Supreme Court bench said that people's faith in judiciary was decreasing at an alarming rate, posing a grave threat to constitutional and democratic governance of the country. It acknowledged some of the serious problems such as –
  1. Large number of vacancies in trial courts,
  2. Unwillingness of lawyers to become judges,
  3. Failure of the apex judiciary in filling vacant HC judges posts.
It wanted to seek answers from the government on amicus curiae's suggestion that access to justice must be made a constitutional right and consequently the executive must provide necessary infrastructure for ensuring every citizen enjoyed this right. It also wanted the Government of India to detail the work being done by the National Mission for Justice Delivery and Legal Reforms.[12][13][14]
In October 2012 the BBC reported on the case of Mohammed Idrees, a Pakistani who was held under Indian police control for approximately 13 years for overstaying his 15-day visa by 2–3 days after seeing his ill parents in 1999. Much of the 13 years was spent in prison waiting for a hearing, and more time was spent homeless or living with generous families. Both states denied him citizenship, leaving him stateless. The BBC linked these problems to the political atmosphere caused by the Kashmir conflict. There were many similar cases where espionage had been charged against non-spies for trivial crimes like overstaying visas or minor tresspass, and hundreds of ordinary citizens held in prison by both India and Pakistan. The Indian People's Union for Civil Liberties decried his mistreatment. The Indian Human Rights Law Network told the BBC that the cause was "officials in the home department", including the slow court system, and called the case a "miscarriage of justice, a shocking case".[15]

Judicial corruptionEdit

Corruption is rampant in India's courts. According to Transparency International, judicial corruption in India is attributable to factors such as "delays in the disposal of cases, shortage of judges and complex procedures, all of which are exacerbated by a preponderance of new laws".[16] Most disturbing is the fact that corruption has reached the highest judicial forum i.e. Supreme Court of India. Some notable cases include:
  1. In December 2009, noted social activist, campaigner for judicial accountability and a Supreme Court lawyer Prashant Bhushan in response to the notice of contempt issued by the Supreme Court (for his interview to a news magazine in which he had said, "out of the last 16 to 17 Chief Justices, half have been corrupt"), filed an affidavit standing by his earlier comments saying: "It is My Honest And Bonafide Perception".[17] Later in September 2010, he submitted a supplementary affidavit in which he submitted evidence to back his allegations.[18] In November 2010, former Law Minister, Shanti Bhushan echoed Prashant Bhushan's claim saying: "It is my firm belief that there is a lot of corruption in judiciary. I am saying the same thing which Prashant Bhushan had said. The question of apology does not arise. I will rather prefer to go to jail. The judiciary cannot be cleansed unless the matter is brought into the public domain".[19]
  2. In June 2011, a very widely respected former Chief Justice of India J. S. Verma echoed these views saying that "certain individuals with doubtful integrity were elevated within the higher judiciary" He cited the case of Justice M. M. Punchhi, whose impeachment had been sought by the campaign for judicial accountability. Justice Verma said he was willing to permit the allegations to be probed but the political executive refused to allow this. Justice Verma further explained, "Because the allegations, if proved, were serious and therefore they required to be investigated, so that one could know whether they were true or not." He acknowledged that Justice Punchhi was later elevated to CJI despite facing "serious allegations". Justice Verma also talked about another former CJI K G Balakrishnan's continuance as National Human Rights Commissionchairman. Justice Verma said, "He should have demitted long back and if he doesn't do it voluntarily, the government should persuade him to do that, otherwise, proceed to do whatever can be done to see that he demits office."[20]
  3. In November 2011, a former Supreme Court Justice Ruma Pal slammed the higher judiciary for what she called the seven sins. She listed the sins as:
    1. Turning a blind eye to the injudicious conduct of a colleague
    2. Hypocrisy – the complete distortion of the norm of judicial independence
    3. Secrecy – the fact that no aspect of judicial conduct including the appointment of judges to the High and Supreme Court is transparent
    4. Plagiarism and prolixity – meaning that very often SC judges lift whole passages from earlier decisions by their predecessors and do not acknowledge this – and use long-winded, verbose language
    5. Self Arrogance – wherein the higher judiciary has claimed crass superiority and independence to mask their own indiscipline and transgression of norms and procedures
    6. Professional arrogance – whereby judges do not do their homework and arrive at decisions of grave importance ignoring precedent or judicial principle
    7. Nepotism – wherein favors are sought and dispensed by some judges for gratification of varying manner.[21]
  4. In 2011, Soumitra Sen, former judge at the Kolkata High Court became the first judge in the India to be impeached by the Rajya Sabha for misappropriation of funds.[22]

ReformEdit

E-Courts Mission Mode ProjectEdit

The E-courts project was established in the year 2005.[23] According to the project, all the courts including taluk courts will get computerised. As per the project in 2008, all the District courts were initialised under the project. In 2010, all the District court were computerised. The entry of back log case has started. The IT department had one system officer and two system assistants in each court. They initiated the services in the Supreme Court in June 2011. The case lists and the judgements of most district courts are available in http://lobis.nic.in. in http://judis.nic.in is used to connect all High Courts and Supreme Court judgements and cause list. These websites are updated daily by a technical team. Now the establishment work is going on taluk courts.
The project also includes producing witnesses through video conferencing. Filing cases, proceedings, and all other details will be in computers. Each district court contains 1 system officer and 2 system assistants. This technical manpower is involved in training the staff, updating web sites.[citation needed]
Establishment of e-courts in India is in infancy stage.[24] Till the month of August 2014 we are still waiting for the establishment of first e-court of India.[25]

Judicial Service CentreEdit

This is a part of e-court project. The judicial service centres are available in all court campus. The Public as well as the advocates can walk in directly and ask for the case status, stage and next hearing dates. This service is provided for free.[citation needed]

HistoryEdit

Jury trialEdit

The first jury trial decided by an English jury in India happened in Madras (today Chennai) in 1665, for which Ascentia Dawes (probably a British woman) was charged by a grand jury with the murder of her slave girl, and a petty jury, with six Englishmen and six Portuguese, found her not guilty.[6] With the development of the East India Company empire in India, the jury system was implemented inside a dual system of courts: In Presidency Towns (Calcutta, Madras, Bombay), there were Crown Courts and in criminal cases juries had to judge British and European people (as a privilege) and in some cases Indian people; and in the territories outside the Presidency Towns (called "moffussil"), there were Company Courts (composed with Company officials) without jury to judge most of the cases implying indigenous people.[6]
After the Crown Government of India (Raj) adopted the Indian Penal Code (1860) and the Indian Code of Criminal Procedure (1861, amended in 1872, 1882, 1898), the criminal jury was obligatory only in the High Courts of the Presidency Towns; elsewhere, it was optional and rarely used.[6] According sections 274 and 275 of the Code of Criminal Procedure, the jury was composed from 3 (for smaller offences judged in session courts) to 9 (for severe offences judges in High Courts) men; and when the accused were European or American, at least half of the jurors had to be European or American men.[6]
The jury found no place in the 1950 Indian Constitution, and it was ignored in many Indian states.[6] The Law Commission recommended its abolition in 1958 in its 14th Report.[6] Jury trials were abolished in India by a very discrete process during the 1960s, finishing with the 1973 Code of Criminal Procedure, which is still in force today.[6]
It has been argued that the 8:1 acquittal of Kawas Nanavati in K. M. Nanavati vs. State of Maharashtra, which was overturned by higher courts on the grounds that the jury was misled by the presiding judge and were susceptible to media and public influence, was the reason. A study by Elisabeth Kolsky argues that many "perverse verdicts" were delivered by white juries in trial of "European British subjects" charged with murder, assault, confinement of Indians.[6]
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