Ridden with bugs, racked by delays, located in ramshackle premises; do India's 'temples of justice' really deliver justice?

It's not a simple question to answer. Has the judicial system delivered? Or has it not?
PP Haresh Jagtiani, Shailesh Haribhakti and Narinder Kumar Nayyar (right to left) participate in the panel discussion. In the second picture, Jimmy Pochkhanawalla makes a spirited defence of the judicial system

Is justice really delivered to the actual "user" of the law (a litigant)? Is it not true that one can get bail even in a criminal case for a few hundred rupees? Can an iron-clad case in a civil suit (such as non-payment of a bill of exchange or promissory note) or a claim arising out of tort or negligence ensure quick justice?

Why do most litigants have to wait for many years before getting a decree or a judgement? In Bombay, it takes 15 to 20 years to realise one.s civil claims . one then has to contend with the appeals available to the other side.

What about the criminal courts? They function out of decrepit, rundown premises which have no toilets but have chairs and benches infested with bugs and other crawling, bloodsucking insects.

What about the criminal courts? They function out of decrepit, rundown premises which have no toilets but have chairs and benches infested with bugs and other crawling, bloodsucking insects.

A judicial system should not tolerate even a single isolated instance of this kind. And yet, such happenings are rampant. Can this be called delivery of justice? Given the decrepit nature of the criminal courts, can they be called .temples of justice.?

The answer to all these questions and the principal poser, "Has our judicial system delivered?" is an emphatic "No".

This was the case presented by the eminent criminal lawyer, PP Haresh Jagtiani, at the last meeting in the course of a round-table discussion on judicial delivery. Other participants in the discussion, moderated by Pradeep Saxena, were Shailesh Haribhakti and Narinder Kumar Nayyar.

Jimmy Pochkhanawalla, speaking from the floor, countered the scathing attack made by Haresh on the Supreme Court for its abject surrender before the tyranny of Indira Gandhi's clique under the garb of the Emergency in 1975. He called it an aberration and said the judicial delivery system could not be written off for that one black spot.

Both Shailesh and Narinder seemed to agree, with the latter pointing out that India at least had laws and courts of law . these were conspicuous by their absence in China.

Pradeep set the ball rolling by harking back to Aristotle who had said that democracy was a bastardised form of something called polity . when polity meant government of the people, for the people and by the people.

The functioning of the judicial system was the subject of debate in every country; the primary issue was its credibility at the upper and middle levels but, more importantly, across the board. The question asked was, "what is the ability of a person who has been wronged to get redressal from the system and from the state?"

India and Indians were now increasingly debating the same question.

Pradeep said that Haresh was chosen to speak because he was an .ambassador . of the judicial system; Shailesh was known to advise corporations and people on how to conduct themselves within the framework of the laws of the land; and Narinder because he was in the vanguard of the NGO movement.

Speaking first, Haresh had an unequivocal answer to the topic under discussion. "No. The judicial system has not delivered," he stated.

As a senior member of the profession and an officer of the court, he was a part of the system. But all he could do was to ensure that he himself did not pervert or subvert the system and that he stayed within the rules of ethics and the prescribed rules of conduct.

Actually, the system was run by the judges at all levels, whether the Supreme Court, the High Courts, the lower judiciary, the civil courts, sessions courts, criminal courts, magistrates . courts and so on.

But the question, "Has our judicial system delivered?" had to be addressed in the context of the political system (constitutional democracy) that India had given herself. Further, a demo-cracy functioned on the basis of the values enshrined in the constitution. And some of these values such as liberty, equality and secularism were inalienable.

Therefore, while debating whether the system had delivered, it was necessary to see whether these constitutional norms and values were upheld even in a crunch situation.

One such situation challenged the Supreme Court during the Emergency of 1975. It was clear that the Emergency was political and not a serious one. In May-June, 1975, Mrs. Indira Gandhi was held guilty of indulging in corrupt practices during her own election; and the Allahabad High Court struck down her election.

'The pardoning of Jagjivan Ram for forgetting to file his income tax returns for ten years, was an act worse than the Emergency'

Her party lost the elections in Gujarat. Her son Sanjay Gandhi "would have probably been guilty of almost every crime under the law for whatever he had done with his Maruti car and so on". That was the "grim situation" that faced the ruling party at the time - and so it declared an Emergency.

Warming up to the subject, Haresh recalled that all civil liberties were suspended; a person could be put into jail with impunity; one could be thrown into a dungeon and the key thrown away. When this Emergency came to be tested before the Supreme Court, sadly, it did not interpret the constitution in the manner that it was meant to be read.

"In that crunch situation, the Supreme Court buckled under. While 22 judges of various High Courts had held that the Emergency and the right of the executive to lock up someone or deny someone his civil liberties was illegal, the Supreme Court turned around and said that it was perfectly legal and that the suspension of civil liberties was to be tolerated.

"According to me, this is a serious blemish on the judiciary. You must understand the situation in crunch moments, not merely in good times, when there is peace and everyone can do or say what he likes.

"According to me, this is a serious blemish on the judiciary. You must understand the situation in crunch moments, not merely in good times, when there is peace and everyone can do or say what he likes.Mudit Jain.

Haresh then turned to the lower judiciary and said that it could be evaluated almost on a day-to-day basis. But he touched upon just three aspects . the massive backlogs, decrepit premises and the ability to obtain processes from remote courts and to use these to harass innocent people. (These aspects have been touched upon at the beginning of this report.)

The next speaker, Shailesh Haribhakti, said that while preparing his opening statement, he had reflected upon the elements that drove the efficacy of the legal system.

He had then realised that the people of India were initially influenced by the Gandhi-Nehru legacy. There was pride in the fact that India had won freedom after 200 years of bondage; there was a sense of probity in public life which made people believe that those who were supposed to set policy and to create legislation, and those who had drafted the Constitution, had that probity and the ability to influence the people in a positive manner.

But things changed... and for three decades the country went under the influence of a leader some of whose actions, specially the Emergency, had already been touched upon.

If anything could be worse than the Emergency, Shailesh said, it could only be the "public pardoning" of several wrongs. For example, the Dalit leader, the late Jagjivan Ram, had "forgotten" to file his income tax returns for ten years. Yet he was pardoned.

Similarly, in the Nagarwalla case, a man had had the gumption to take away Rs. 60 lakhs from the treasury of the State Bank of India "on the voice instructions of the Prime Minister".

The case was decided in four days, but the aftermath was intriguing, to say the least. The man recanted on his confession and was about to be tried. But before the trial could begin, he died in jail under mysterious circumstances. If that was not enough, the police officer investigating the case also died under mysterious circumstances some months later.

"Thus, there was a complete desecration of what we would call probity and good behaviour".

That period marked the loss of leadership, the lack of a person of probity who would hold the whole structure together, and that led to a complete breakdown in the way in which people interacted with one another. It led to quarrels, litigations and all sorts of undesirable behaviour which, in turn, created a huge pile of cases in the courts.

Therefore, while discussing the judiciary.s effectiveness, Shailesh said, it was necessary also to look at the factors that influenced society and the people at that time.

He recalled that he was an eightyear- old and didn.t know anything about politics when Jawaharlal Nehru died in 1964. It had seemed at that time that a member of the family had died, such was the atmosphere of gloom.

By contrast, the reverse was true when Sanjay Gandhi died. "I was in the US, I clearly remember, and his death was an occasion of debate and some celebration, the sort of loss that one felt (at the time of Nehru's passing away) was not there".

Today, over three generations of litigation were pending in the courts. According to one estimate, it could take 400 years for all the existing litigation to be cleared. Such a drastic situation required drastic action and Shailesh put forth three propositions to tackle it.

First, everyone could take up one project which might not benefit them as individuals but benefit the community. It could be something to do with the environment. This was important because the feeling it would generate would create a "positivism" that would reduce the desire to endlessly litigate.

Secondly, with the help of friends in the legal system, an attempt had to be made to introduce technology into the judicial process. Those arguing cases could put their arguments on a CD and hand it over to the judges, so that the huge delays caused on account of the unavailability of stenographers could be eliminated.

Online testimony, online recording and instant availability of such inputs to the judges could be another step. So would the bunching together, through technology, of all the cases on a similar point so that once a judgement was issued, it was applicable to all the cases and the litigation on that issue came to an end.

Even more important, as soon as a case was over, all the testimony and the presentations by all those arguing it could, with the help of technology, be put together by the judge; he or she could then put the final verdict on it, so that the decision was quickly made available.

Shailesh said it was meaningless to wait for 14 to 15 years to get a judgement. For by the time the judgement was delivered, either the person was dead or the next generation entered the picture, but with no interest in the case. This also meant that the judgement did not have the credibility of acceptance.

It was on account of this that the first thought in everybody.s mind, as soon as they got a judgement, was to see what could be done to unravel it or ensure that it did not stick. Hence there was appeal after appeal and the entire process was bogged down.

The moderator takes notes. Pradeep Saxena (left) seen with Narinder and Shailesh. (Second photograph) Shailesh takes the mike to make his point

'People are no longer afraid of the law, or of breaking the law; they believe they can get away with anything'

Shailesh's third proposition touched on conciliation, mediation and arbitration in a positive spirit. If the whole cause of the action could be sorted out between the parties to the dispute, then that was the best way possible to have, "within our own generation, decisions which we can happily accept".

"As soon as a decree is actually passed by a court of law, I would like to see it respected. The only thought about a decree ought to be . let's figure out how can we implement it faithfully, not try to see whether it is better for us or for the other party".

To the extent that the judiciary had given judgements like the Jessica Lal case and other recent cases, Shailesh said, he would say that the judiciary had delivered.

"We do have a fear of the law; we do have the confidence" that if we transact business or enter into a contract, our contract will stand the test of judicial scrutiny.

"Therefore, I think that the judiciary has delivered. What we need to do as (members of) the public is to set out the ways in which we can invite technology and conciliation to ensure that the delays in justice are eliminated," he concluded.

Speaking last, Narinder Kumar Nayyar said that there were both good and bad things about the Indian judicial system.

The good thing was that India had a system in place. Over the last 15 years, the whole world had been talking about China and India and about going to China. But few people knew where the courts were located in China. For it had no legal system. So they preferred coming to India because it had a legal system and it had an address that they could go to for redressal.

But the bad thing was that the confidence in the legal system was eroded by factors that had just been described. People had lost the confidence of going to court to get justice in time.

The system was said to be both inefficient and incompetent. But there were competent people in the judiciary and they had delivered competent judgements. The problem was more about the efficiency of courts, which sometimes took 20 to 30 years to decide cases.

At the lower levels (in the lower courts), murderers and rapists were able to walk out on a bail of just a few hundred rupees. There was no fear of the law in the people; they believed that the law was not really going to be enforced, that they would be able to walk away and nothing would happen to them.

To put some fear into the people, Narinder said, it was necessary to make the system more effective and for it to go for quick implementation and proper execution. It was also necessary to get good judges. But then it was not possible to get the best brains because judges were not properly paid.

"We have to bring up their scales, give them better quality, improve the system. make it more efficient; let's have more courts; don't allow cases to go on for years. NGOs are reluctant to go to the courts because they think cases will not come up quickly.

"Look at the tree authority trying to go around breaking the rules. Look at what happened in the mill lands. case. There was a system there and everybody knows what happened. The judgement was not really written by a judge but, they claimed, it was written by a builder.

"These sort of things are happening. So we need to get a better quality of judges and a better quality of administration; that will help to build confidence in the system. it is a good system, but it needs to be properly implemented," Narinder added.

As soon as Pradeep threw open the debate, Jimmy Pochkhanawalla was the first to take the mike. And he made a pithy comment, viz., that the only legal person on the panel (Haresh) had stated that the judicial system had not delivered; whereas the other two panellists, who were not lawyers (Shailesh and Narinder), had said that the judicial system had delivered!

Taking exception to Haresh.s pronouncement, especially with respect to the Emergency, Jimmy preferred to call it an aberration which could not be used to chastise the entire judicial system. Such aberrations occurred in American and British courts as well.

What the lay person wanted to know was whether the judicial system was delivering in the manner and at the speed that was expected of it.

Responding to some of the points made by the panel, Jimmy said it was not true that people of good calibre were not becoming judges. In the Bombay High Court, a number of young lawyers in their '40s, with lucrative practices and top quality brains, had sacrificed their practices and become judges. They were doing excellent work, sitting till 6 or 7 in the evening every day.

As for the mill lands case and the "talk" that it was a mill magnate and not the judge who wrote the judgement, Jimmy said "these things are always said whenever one side loses and another wins. There is absolutely no evidence or proof of that till today that has been shown to anybody.... it's loose talk. The bottom line is that deliverance is there".

Advocating a higher court fee, he pointed out that since Indian courts had "the lowest fees in the world", they were flooded with litigation. Besides, it was not the court system that was responsible for delaying justice; rather, it was "the Indian public with its penchant for litigation" that had to take the rap.

Turning to arbitration procedures, Jimmy revealed that 99.9% of all arbitration decrees or awards went back to the High Court with a plea to go into the awards and to rule whether they were right or wrong. The courts were simply flooded because of this.

"It is the Indian public that has to blame itself first. If the Indian court system forces you to pay even Rs. 5 to enter the High Court building, as Delhi does, you will see a building without any people in it. Today, people literally come there as if they are on a picnic. You must understand that the courts are flooded for reasons brought on by all of us.

"The judiciary will only do what it can do in the five hours that it works. But to say that it has not delivered, I'm sorry, but I don.t agree with that. Had it not delivered, I don't think we would be sitting here with as much freedom as we are enjoying," he concluded.

Endorsing Jimmy's spirited defence of the judiciary, Fakhruddin Khorakiwala suggested that someone file an application under the RTI Act to find out what happened to the monies received as court fees.

Did all the money received as court fees go to the government and did it even control the purchase of pens and stationery? Fakhruddin believed that if the entire income of the judiciary was spent on the judiciary itself, then delays would not occur and justice would be dispensed quickly.

Natoobhai Brahmbhatt agreed with Jimmy that Indians were a lawless people. They did not hesitate for a moment when breaking the law. They did not form queues, they drove in whatever manner they liked, they spat on the road.

"These are elementary things, but they all accumulate to make the society more criminal. We elect legislators one-third of whom, both in State legislatures and in Parliament, are criminals.

"Take the police, take the bureaucracy, the politicians. from top to bottom. Every act of bribing, every act of corruption is a crime; therefore, we are a completely crime-ridden society.

A lovely group photo. Two of the panellists at the last meeting, PP Haresh and Narinder Nayyar, seen in the company of (from left) President Dr. Rumi Jehangir, PP Gul Kripalani, First Lady Pervin and Darab Davar

"Just yesterday, some statistics on TV showed that the number of murders last year was the highest in India, about 36,000; whereas in the USA there were 9,000 and in Pakistan, 21,000 murders,. Natoobhai added.

Responding to the points raised, Haresh clarified that he was not blaming the judges for the judicial system not having delivered.

'The judiciary is deliberately kept in decrepit condition, for it shields the common man from the tyranny of the executive'

He agreed that the Bombay High Court had some inspiring young judges who could have made fortunes as counsel yet had sacrificed their practice.

But he believed that the Bombay High Court was like an oasis and that it was not the same all over the country. And that the judicial system could improve if there was the political will.

"It is my case that the judicial system is deliberately allowed to remain in this condition, because it is the one institution which ultimately comes between the tyranny of the executive and the common man. Allowing the judiciary to remain absolutely independent is not something that augurs well for the executive.

"Everyone knows that if you want to appoint a first rate judicial officer, you have to pay him more. Judges in Pakistan are paid much better than judges in India"

Revealing a "startling fact" to underline the gravity of the situation, Haresh said that during British rule about 120 years ago, a judge of the Bombay High Court was paid Rs. 5,000 per month. Today, his salary was Rs. 4,500. There was just no point in comparing the value of a rupee today with that 120 years ago. The sum of Rs. 5,000 would have sustained an army at that time".

Thus, a judge was paid less today than he was paid then. Of course, judges were now given allowances outside the constitution, but their salary under the constitution was still Rs. 4,500.

"Even judges have families, they have needs, and they have children who go to the same schools and colleges as our children. And obviously there is a comparison. What a counsel earns in one hour is probably as much as a judge earns in an entire month. We have to upgrade their salaries.

"These are such obvious remedies that are available but are not being attempted. Why are these things not being done? It is my case that, politically, it is expedient for the executive to allow the judiciary to remain in this condition so that it can continue to exercise its power".

Dr. Percy Chhiber then took the mike and said he did not agree with Jimmy that Indians were a litigious people, for otherwise the courts would be choked with litigation.

But he wanted to know whether judges in India could be more proactive, as in France, to ensure that justice was done and not just that the laws were observed. Or would they remain whistle-blowers like the judges in Britain?

Haresh said that Indian judges, if they felt that there could be a miscarriage of justice because a person was not being adequately represented, were known to look around the court and, on spotting a senior counsel, invite him to appear as an amicus curiae (a friend of the court) and help the litigant concerned.

In criminal cases punishable with capital or life imprisonment, the accused had the right to choose a lawyer from a panel provided by the State. But this right was not granted to those facing lesser offences.

The French system presumed the accused to be guilty unless he proved his innocence. That was called the Napoleonic law. But it was not really harsh today because the investigation was done so thoroughly that it virtually nailed the culprit at that stage itself; therefore, he was presumed guilty till he otherwise proved his innocence.

A similar presumption of guilt had entered India.s fiscal laws, too. The customs act, the excise act and (various provisions of) the income tax act stated that if a certain fact was proved, then guilt was presumed unless the person concerned rebutted the presumption beyond reasonable doubt.

Burjor Poonawala wanted to know why Indian jurisprudence had dispensed with juries.

Haresh Jagtiani said juries did exist, but only in one limited jurisdiction, viz., a Parsi matrimonial court. If a Parsi wanted to get divorced, he had to get approval of nine worthy men from his own community.

On a more serious note, he said the jury system was abolished in 1963 after the Nanavati case.

The Law Commission had found that a jury could be easily suborned, got at or tampered with, hence it recommended abolition of the jury system.

Haresh said he had never appeared before a jury but one man who had done so very often was the legendary Mr. Ram Jethmalani. And it was his boast that he could get any judgement given by a jury set aside in an appeal court on the grounds that the jury was misdirected.

A jury was usually composed of lay people who fulfilled what was known as "the standard of a reasonable man". At the end of a trial, the judge summed up the evidence before him and directed the jury to apply not legal principles but just general principles emanating from the facts of the case.

This was where, Mr. Jethmalani used to boast, he could have almost any judgement set aside by asserting that the directions given to the jury were wrong.

Shanta Chatterji had three questions. First, when justice was delayed, did it at all lead to a solution? Second, could social counselling before a dispute went to court, or even when it was in court but at an early stage, help reduce the number of cases?

Third, considering that the study of psychology and of science had changed, what was considered a crime earlier was not a crime any longer. In view of this, did not laws become outdated? How did this affect the actual delivery of justice?

Shailesh said that the Maharashtra government had set up an elaborate system of delivering "counselled justice" in the villages. It offered a huge prize of Rs. 25 lakhs to the best village one that had no fights/quarrels/ litigation.

Touching on the first question, Haresh said that when someone was frustrated on not getting justice, he tended to take the law into his own hands.

This rendered the whole judicial system irrelevant or redundant. But then even Emerson had said that .When public administration fails, private vengeance sets in".

Giving an example, he said that if a person holding a negotiable instrument was not paid by his debtor, he was likely to go to a gangster. The latter would discount the instrument by 50% and then use strong-arm tactics to recover the whole amount along with interest.

"This is the most insidious part of the impact of the delay (in getting justice), because you take the law in your hands and you render the whole system completely irrelevant. Therefore the system falls to pieces. The rule of law which governs our conduct is rendered farcical.

"I am entitled to money and someone has defaulted. He refuses to pay or takes shelter behind the system and the system comes to his rescue and enables him to hold on to the money, wrongfully, for years to come".

Agreeing with Shanta about laws becoming archaic, Haresh said there were at least 5,000 pieces of legislation that needed to be scrapped right away. The reason why they were still on the statute book was that some executive was making money from it by using the discretion that it conferred on him.

For example, the immigration laws were 150 to 200 years old . but these applied to air passengers today! Aircraft did not exist when those laws were made, but they were still kept on the statute book, Haresh added.

Giving his own take of the situation, President Dr. Rumi Jehangir said that it would help if lawyers were penalised when they did not appear in court and sought date after date.

Besides, he suggested that lawyers be paid on a case basis and not on a hearing basis, for then there would be no incentive for them to delay cases.