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The above interesting question has been posed by Dr. Jagadish Hiremath, MD, and is in circulation on social media. The learned doctor has also answered as follows “We in healthcare running hospitals run them at night too. Senior doctors and staff will be on call 24/7, 365 days. In my personal opinion, Judiciary too should be available for those in need in a similar way. Why should the Judiciary be treated differently?”
The response for the learned doctor’s poser is an overwhelming affirmation exceeding 94.5%. An overwhelming 97.3% of viewers also affirmed the need for urgent reforms.
Recent events involving a celebrated TV personality and the controversies over his bail petition, and the ultimate temporary resolution in the Supreme Court, has once again prompted a debate about the urgent necessity of judicial reforms.
This writer has functioned as a Quasi-Judicial Authority for over 37 years and passed over seven thousand orders as an Appellate Authority while functioning as Commissioner-Appeals in different parts of the country. As such, I have seen the great agony and misery suffered by litigants, in their vain pursuit of justice before different forums.
Many high profile cases of recent times involving arrests and bail applications are hogging newspaper and visual media headlines. While VIPs manage to pretend a sudden chest pain and disappear into an ICU of some luxurious hospital, the lesser privileged ones are dragged, pushed and jostled by Enforcement agencies into waiting vehicles, for ultimate production before a Magistrate, who will either remand him to Judicial Custody or permit the Enforcement agencies to keep him/her in their custody for interrogation and recording of statements. Thereafter begins the tortuous path to obtain a bail, sometimes this quest may involve multiple visits to different judicial forums and some may have to knock on the doors of the Supreme Court just to get a bail! The doctrine propounded by eminent Jurist Shri. V.R. Krishna Iyer, of ‘Bail not jail’ in the case of State of Rajasthan versus Balchand in 1977 is hardly being observed nowadays. Whether it is an application for regular bail, anticipatory bail, statutory bail and interim bail, the entire process has become tedious and time consuming. The enormous expenditure involved in this entire process can be nerve wracking and the inordinate delays can be both tiring and taxing. Court holidays, fixed working hours, pending cases all contribute to the interminable waiting for a bail. For innocents entangled in this complicated web involving professional rivalries and obstinacy and orthodoxy of the legal profession, it can be a physically, mentally and monetarily draining experience.
Once the regular case proceedings start, it is invariably a roller-coaster journey involving endless adjournments, Cause-List not getting completed, Advocates not being present, shortage of Judges, time to study documents, cross-examinations, turning hostile, forgetting, retracting, and disowning. A life-time is just not sufficient to complete one legal ordeal in India! It becomes a life and death issue for many litigants, that is why the Doctor is making an impassioned plea for Courts to function round the clock 365 days.
Is it not time for some drastic judicial reforms? The Judiciary, which is a pillar of democracy, is cracking and gradually collapsing under the weight of its own procedures, interpretations and multiple appellate forums. People are so fed up with the system that extra judicial actions are getting appreciated and accepted, simply because they are quick and final, and more important the public accepts it as fair and just.
An apposite example is the recent encounter killing of a few rapists. The people across the country were rejoicing when the suspected rapists were killed in an encounter. The due process of law would have entailed protracted proceedings, requirement of corroboration, scientific evidence, and crystal clear testimonies. At some stage of the proceedings misplaced sympathies get ventilated and the suspects escape appropriate punishment in the name of human rights and other irrelevant considerations. Another disturbing trend is the participation of juveniles in gory crimes like gang-rape and murder, and they escape very lightly taking advantage of their legal age. The simple principle should be that if the juvenile is capable of committing an adult crime, he has the capacity to bear the legally prescribed punishment. All other considerations are immaterial.
Filing of FIR is another contentious topic, and very frequently we hear of the Station House Officer (SHO) refusing to register an FIR, or diluting the offence or not recording the facts properly, ultimately because of this the case gets sabotaged. Very few citizens get courteous treatment. Government can experiment with the idea of legally filing Preliminary FIR before authorities like the Legal Services Board, Bar Council, NHRC, State Women’s Commission, SC/ST Commission and other government bodies, so that people can boldly register their complaints. Round the clock counters can work to accept FIRs, help in drafting FIR and if necessary arrange medical assistance. The Preliminary FIR can after legal vetting be transferred to the jurisdictional Police for necessary investigations. As many students are passing out of Law Colleges, a cadre of FIR Writers can be created to be employed in Police Stations and above mentioned organizations. Law Colleges can also introduce short term specialized courses in FIR Writing. Pre-printed FIR forms would be a great step towards standardization of FIR format across India. If serial numbering, automatic date and time imprinting is incorporated, much of the prevailing misuse can get obviated. This step can ensure a round-the-clock facility in different locations in a city/town/village where FIR filing and registration can be done hassle free. If the whole process can be made online and connected nationally, it would be a great step forward to make the legal system more efficient and readily available round-the-clock like healthcare systems.
Another grey area is the lack of well laid out Standard Operating Procedures (SOPs), whether for FIR writing, or for investigating any grave crimes like rape, gang-rape, murder, rioting and financial frauds. The present opacity contributes to the deteriorating quality of investigations resulting in acquittal of offenders. Once the SOPs are in place and accorded legal approval, then there is little scope for manipulation or dilution of case proceedings.
The World Justice Project has chosen Denmark as having the best judicial system in the world, while India is ranked 69th among 128 countries.
The WJP Rule of Law Index measures rule of law performance in 128 countries and jurisdictions across eight primary factors: Constraints on Government Powers, Absence of Corruption, Open Government, Fundamental Rights, Order and Security, Regulatory Enforcement, Civil Justice, and Criminal Justice. The index is based on 48 parameters measuring the level of corruption, human rights, state openness, criminal justice system etc. The Index is the world’s leading source for original, independent data on the rule of law. Denmark’s legal system prides in its absolute independent system that is free from legislative branches. Their judges are heavily scrutinized and all of their records are made available to the public to ensure absolute transparency.
We are also not recognized as a country having a well-developed legal framework. In this category also Denmark occupies the first place in the world, having a robust and independent legal framework.
In view of India’s low ranking at No.69, the government needs to undertake a massive exercise to restructure and reform our judiciary. Like the healthcare sector the government needs to put in place an efficient and robust legal system that is ever responsive to the needs of its citizens and capable of delivering time bound verdicts.
(The author is Former Director General, National Academy of Customs Indirect Taxes and Narcotics, & Multi-Disciplinary School Of Economic Intelligence India, Fellow, James Martin Center For Non Proliferation Studies, USA. Fellow, Centre for International Trade & Security, University of Georgia, USA Public Administration, Maxwell School of Public Administration, Syracuse University, U.S.A. AOTS Scholar, Japan)