Of all the privileges that the powerful can gain access to in India, the most potent is their ability to postpone cases.
At the investigative side, it allows for destruction or “creation” of evidence, while at the judicial level, it allows the powerful to get away with a crime, sapping the weak of their ability to fight corruption.
The ability of the powerful to manage the investigative and the judicial processes makes them more tyrannical and the poor that much more miserable. It hurts the poor and scares away businesses. Since the risks now for doing business in India has become greater, it drives up prices, to manage such related costs.
On January 12, 2012, a Supreme Court bench admitted that people’s faith in the judiciary was decreasing at an alarming rate, posing a grave threat to constitutional and democratic governance of the country.
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 to ensure that every citizen enjoyed this right.
It also wanted the central government to detail the work being done by the National Mission for Justice Delivery and Legal Reforms (announced by the government in June 2011 claiming to operationalise a number of plans to ensure expeditious and quality justice. The Centre said it was committed to spending Rs 5,510 crore in the next five years for the Mission). No clear timeline commitments are forthcoming as yet.
Meantime, the numbers reinforce a frightening picture.
According to 2010 Indian government data, about 300,000 of the total 430,000 prisoners in India were undertrials who are unconvicted defendants in criminal cases. In 2007, that number was only 250,727, which would suggest that the number has grown by 50,000 people in just over two years, said Jayanth Krishnan, professor at Indiana University Maurer School of Law, and Raj Kumar, dean at O P Jindal Global Law School, in their paper ‘Delay in Process, Denial of Justice: The Jurisprudence and Empirics of Speedy Trials in Comparative Perspective,’ published in the Georgetown Journal of International Law in 2011.
The increasing number of undertrials has led to overcrowding of prisons. By 2007, all the prisons in India accounted for 35% overcrowding as they had 376,396 undetrials against the sanctioned capacity of 277,304 (Prison Statistics India 2007, National Crimes Record Bureau). And this does not include the vast numbers in police lockups outside judicial custody. Sadly, except for a few high profile cases of the last few years, most undertrials are poor and powerless.
Kumar and Krishnan said, “The problem of delays by lawyers underscores the need for reforms in legal education as well as raising the quality of legal profession. The data released by the SC demonstrates that delays are indeed a reality and their causes are multifold, but a good part of the burden needs to be taken by the lawyers.”
The other major reason why cases get delayed is shortage of judges. The sanctioned strength is woefully less. And even of these reduced numbers, many vacancies remain unfilled.
Vandana Kumar from department of law, Punjab University, said, “The institution of cases in courts far exceeds their disposal. The average disposal per judge comes to 2,370 cases in high courts, 1,346 in subordinate courts calculated on the basis of disposals and judge strength in December 2010. There is a requirement of about 1,539 high court judges and 18,479 subordinate judges to clear the backlog.”
Since filling the vacancies is a prerogative of the court, the blame must be put on the judicial system, the non-availability of infrastructure.More courtrooms, more funds for the salary account, funds for technology upgradation and better working conditions have to be sanctioned by the legislature and implemented by the executive.
The Commonwealth Human Rights Initiative (CHRI) makes other recommendations:
- Create a statutorily-based committee devoted solely to monitoring detainees’ rights.
- Have judges travel to the jails and adjudicate proceedings within the confines of the undertrials’ cells. Such ‘jail-adalats’ have been instituted in various parts of the country, and there are some reports on their performance.
- Increase the number of judges in the criminal courts to reduce overburdened, delay-ridden dockets;
- Enhance the technological and infrastructural facilities of the courts themselves to make the courtroom process more efficient;
- Promote greater integrity by the police while encouraging the police to accelerate the investigation process, so that cases do not languish and collection of evidence is not neglected;
- Maintain the continuity of criminal cases from one judge to another when the presiding judge is transferred mid-case (as is common in this civil service-based judicial system) to a different court;
- Discontinue the frequent judicial practice of granting unnecessary adjournments;
- Expand the bail opportunities for defendants charged with less serious crimes;
- Segregate undertrial prisoners from those who have already been covicted.
But till the vacancies are filled up, new posts created and filled, a system to weed out the corrupt and the inept, and the post of judges made more attractive, the dispensation of justice will be largely for the powerful and the influential.