Judicial delay may become a thing of the past

N R MADHAVA MENON IN THE HINDU

The National Mission to improve the delivery of justice is at work.

In October 2009, on the basis of a Vision Document adopted at a judicial conference in New Delhi, the Government of India approved in principle a National Mission to reduce pendency and delays in the judicial system and enhance accountability through structural changes, higher performance standards and capacity-building. Many past attempts to achieve the goals did not yield results because of lack of institutional capacities, inadequate funding and want of a political will.

When it was realised that without judicial reform the development agenda cannot be carried forward, the 13th Finance Commission made specific recommendations for the grant of funds to improve justice delivery. The Union government announced a series of policy initiatives aimed at reducing pendency from an average of 15 years to three years — within a three year period. It was considered by many as too ambitious for a system used to chronic delays, outmoded procedures and indifferent management. With the money made available and strategies and plans worked out, the government has now come up with a National Mission to accomplish the goal within five years, coinciding with the period of the 12th Five Year Plan. This is a look at the Mission Goals, analysing the components of the Action Plan, examining the strategies proposed and evaluating the prospects, given the conditions on the ground and the constraints.

The catalyst

For a long time, the judiciary was outside the radar of the Planning Commission which distributed development grants. And when the Commission started providing funds, it turned out to be too meagre to make any capacity improvement. The State governments did not increase the number of courts required to handle the mounting number of cases, and the existing ones did not get the needed infrastructure. The judiciary is still to acquire information and communication technology (ICT) support systems to modernise processes, and continues to labour under the weight of over three crore pending cases.

Setting a condition that the government, the single largest litigant, frame a litigation policy aimed at reducing avoidable and unnecessary litigation, the Finance Commission recommended a grant of Rs. 5,000 crore to improve judicial outcomes through six strategic initiatives. These included increasing the number of court working hours, using the existing infrastructure but conducting proceedings in morning/evening hours under a shift system. Other measures involved increased use of Lok Adalats to ease pressure on courts, promotion of Alternative Dispute Resolution methods, training of judicial officers and public prosecutors to enhance capacities, addition of facilities in judicial academies, and the creation of posts of Court Managers in every judicial district to assist in administrative functions. The Central government issued a series of orders sanctioning funds and providing guidelines for the utilisation of the grants. The State governments have started issuing orders for utilisation.

Strategic initiatives

The Department of Justice, now headed by an independent Secretary-level officer under the Ministry of Law and Justice, has assumed the role of the Mission Directorate with the Secretary to Government as Mission Leader. Judicial reform is now as much a function of the government as it is of the judiciary. The Planning Commission has constituted a Working Group on Justice to prepare the demands of the justice system under the 12th Plan, and one can expect continued support, besides the Finance Commission allocations, for the Justice Department’s Mission initiatives. The time is opportune for a breakthrough in the delivery of justice through the National Mission. The first step is to understand the implications of the Strategic Initiatives of the Action Plan and respond to the role and responsibilities envisaged under it. The Action Plan contemplates five strategic initiatives: policy changes, re-engineering procedures, human resource development, leveraging ICT and improving the infrastructure of the subordinate judiciary.

Among policy initiatives, the government has moved legislation proposing to increase High Court judges’ retirement age and enhance judicial standards and accountability. National and State litigation policies are in the process of implementation as part of the National Mission. The All India Judicial Service is being taken up for Parliament’s consideration. Improving the capacities of the judiciary proportionate to the workload is under way through judicial impact assessment as part of the legislative process. To improve human resources, legal education reforms are being considered.

Re-engineering of processes by removing bottlenecks and fast-tracking procedures constitute a major strategy to reduce delays. This may require amendments to statutes and rules; the Law Commission is being asked to work on it. Together with Lok Adalats, mediation, plea bargaining and negotiated settlements, a large part of pending cases is expected to be resolved. Clubbing similar kinds of cases, leaving administrative functions to Court Managers, introducing modern management tools and systems for docket and case management and so on, are other strategies mooted. In 2007, the e-courts project was initiated at a cost of Rs.440 crore (now revised to Rs.935 crore) to provide ICT infrastructure in district and subordinate courts and to computerise judicial records. This is scheduled for completion by 2014, enabling the National Arrears Grid to be operational for integration with the Mission Plan. With the introduction of e-courts, along with video-conferencing, e-filing and related ICT-enabled services, the justice delivery system can be transformed to become people-friendly, less expensive and expeditious.

The human resource component will still be critical, and as such the Mission proposes not only to fill up judicial vacancies but also strengthen training through judicial academies. Efforts to provide continuing education and training for lawyers and public prosecutors are under way with the involvement of Bar Councils and law schools. Many of the shortcomings in the institutions and procedures can be overcome if motivated, competent personnel are available in adequate numbers.

Another component of the Mission involves the development of infrastructure in district and subordinate courts. During the 12th Plan period, all the 15,000 courts are expected to have buildings and equipment for them to be able to operate with efficiency. For this, substantial funds are sought to be provided by the Union government on 75:25 sharing basis. States have been asked to develop the design of modern court complexes in every district and estimate fund requirements. Hopefully, the judicial architecture will soon see a decisive change in terms of efficiency and towards a litigant-friendly atmosphere. Gram Nyayalayas to help rural folk access inexpensive justice at their doorsteps is another step envisaged. Again, with police modernisation, forensic science development, criminal tracking network system and similar initiatives being implemented, it is hoped that criminal justice will soon have a human face.

Popular support

The plan is ready and the funds have been made available. Now what is needed is time-bound implementation in mission mode by the functionaries, and popular support to sustain the momentum. Unfortunately, even informed sections do not believe that pendency and arrears can be controlled given the prevailing mindset of those in charge of the systems, and the undue benefits the vested interests enjoy by keeping the systems as they are. The litigant public seems to be reconciled to their fate and the powerful among them are increasingly using extra-judicial methods to get their due.

Of course, this was the sentiment in the early-1990s about the economy as well. A decisive leadership took the risk and made the change possible, which the people welcomed in due course. Can such a thing happen in the judicial sector in the present context when the political will seems to be forthcoming and the funds have been provided? Let there be a campaign for judicial reform among the public to get the actors motivated by the leadership to take the Mission seriously for the cause of justice and development.

(Dr. Madhava Menon is a former Vice-Chancellor of the National Law Schools in Bangalore and Kolkata, and a member of the Advisory Council of National Mission for Justice Delivery and Legal Reforms set up by the Government of India.)

SOURCE: THE HINDU /    LINK:http://www.thehindu.com/opinion/lead/article2571375.ece?homepage=true

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No need for corroboration and conviction can be imposed on the sole statement of the victim – Supreme Court

The Supreme Court has ruled that in rape cases there is no need for corroboration and conviction can be imposed on the sole statement of the victim. A bench of justices P Sathasivam and B S Chauhan said that the victims testimony cannot be looked at with suspicion. Supreme court adeed that it is a trite law that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person’s lust. The Prosecutrix stands at a higher pedestal than an injured witness as she suffers from emotional injury. Hence, the victims evidence need not be tested with the same amount of suspicion as that of an accomplice. The bench dismissed an appeal filed by Mohd Imran Khan and Jamal Ahmed challenging their conviction for rape of a minor girl about 22 years ago. The defence had argued the victim’s statement cannot be relied upon as she had eloped with the accused.

In 2009, the court had ruled the same when awarding rigorous life imprisonment to convict Raju, a resident of east Delhi for raping his five-year-old neighbour. The apex court had ruled that the evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent, is even more reliable. Evidence Act does not says that victims evidence cannot be accepted unless it is corroborated in material particulars. The court had also ruled that a victim is undoubtedly a competent witness under Section 118. However, courts also say that if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.

Errors in Age Verification

The medical report and the deposition of the Radiologist cannot predict the exact date of birth, rather it gives an idea with a long margin of 1 to 2 years on either side.

In Jaya Mala v. Home Secretary, Government of J & K & Ors., AIR 1982 SC 1297, this Court held:

However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side.

(See also: Ram Suresh Singh v. Prabhat Singh @ Chhotu Singh & Anr., (2009) 6 SCC 681; and State of Uttar Pradesh v. Chhotey Lal, (2011) 2 SCC 550)

Judgement Text:

EVIDENCE OF PROSECUTRIX:

It is a trite law that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person’s lust. The prosecutrix stands at a higher pedestal than an injured witness as she suffers from emotional injury. Therefore, her evidence need not be tested with the same amount of suspicion as  that of an accomplice. The Indian Evidence Act, 1872 (hereinafter called `Evidence Act’), nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 of Evidence Act and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence. The court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations. Rape is not merely a physical assault, rather it often distracts the whole personality of the victim.

The rapist degrades the  very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence. (Vide: State of Maharashtra v. Chandraprakash Kewalchand Jain, AIR 1990 SC 658; State of U.P. v. Pappu @Yunus & Anr. AIR 2005 SC 1248; and Vijay @ Chinee v. State of M.P., (2010) 8 SCC 191). Thus, the law that emerges on the issue is to the effect that statement of prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix.

The Trial Court came to the conclusion that there was no reason to disbelieve the prosecutrix, as no self-respecting girl would level a false charge of rape against anyone by staking her own honour. The evidence of rape stood fully corroborated by the medical evidence. The MLC of the prosecutrix Ext.PW2/A was duly supported by Dr. Reeta Rastogi (PW.2). This view of the Trial Court stands fortified by the judgment of this Court in State of Punjab v. Gurmit Singh & Ors. AIR 1996 SC 1393, wherein this Court observed that the courts must, while  evaluating evidence remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her.

Similarly, in Wahid Khan v. State of Madhya Pradesh, (2010) 2 SCC 9, it has been observed as under:

It is also a matter of common law that in Indian society any girl or woman would not make such allegations against a person as she is fully aware of the repercussions flowing therefrom. If she is found to be false, she would be looked at by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity. She would also be conscious of the danger of being ostracised by the society. It would indeed be difficult for her to survive in Indian society which is, of course, not as forward-looking as the western countries are.

Much reliance has been placed by learned counsel for the appellants on the judgment of this Court in Javed Masood & Anr. v. State of Rajasthan, (2010) 3 SCC 538, wherein it had been held that in case the prosecution witness makes a statement and is not declared hostile, he is supposed to speak the truth and his statement is to be believed.

It is in view of this fact in the instant case that Puran Singh, I.O. (PW.15) has deposed in the court that the birth certificate of the prosecutrix did not relate to the prosecutrix. I did not verify about the birth certificate from the NDMC. I do not remember if at the time of bail application I had submitted that the birth certificate is genuine but does not relate to prosecutrix.

Thus, the question does arise as to what extent the court is under an obligation to accept the statement of Puran Singh, I.O. (PW.15) particularly in view of the birth certificate available on the record. In view of our finding in respect of the date of birth we are of the view that Puran Singh, I.O. (PW.15) unfortunately made an attempt to help the accused/appellants, though in the examination-in- chief the witness has deposed that the Birth Certificate providing the date of birth as 2.9.1974 was genuine.

Be that as it may, by now Puran Singh (PW.15) might have retired as the incident itself occurred 22 years ago. Therefore, we do not want to say anything further in respect of his conduct.

In State of Karnataka v. K. Yarappa Reddy, AIR 2000 SC 185, this Court while dealing with a similar issue held:It is well-nigh settled that even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinized independently  of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. The court must have predominance and pre-eminence in criminal trials over the action taken by investigating officers. Criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit the investigating officer’s suspicious role in the case.

The investigation into a criminal offence must be free from all objectionable features or infirmities which may legitimately lead to a grievance to either of the parties that the investigation was unfair or had been carried out with an ulterior motive which had an adverse impact on the case of either of the parties. Investigating Officer is supposed to investigate an offence avoiding any kind of mischief or harassment to either of the party. He has to be fair and conscious so as to rule out any possibility of bias or impartial conduct so that any kind of suspicion to his conduct may be dispelled and the ethical conduct is absolutely essential for investigative professionalism. The investigating officer "is not merely to bolster up a prosecution case with such evidence as may enable the court to record a conviction but to bring out the real unvarnished truth. (Vide: Jamuna Chaudhary & Ors. v. State of Bihar, AIR 1974 SC 1822; State of Bihar & Anr. etc. etc. v. P.P. Sharma & Anr., AIR 1991 SC 1 1260; and Babubhai v. State of Gujarat & Ors., (2010) 12 SCC 254)

Shri Amrendra Sharan, learned senior counsel has placed reliance on the judgment of this Court in Baldev Singh & Ors. v. State of Punjab, AIR 2011 SC 1231, wherein the convicts of gang rape had been sentenced to 10 years RI and a fine of Rs.1000/- each had been imposed and served about more than 3 years imprisonment and incident had been very old, this Court in the facts and circumstances of the case reduced the sentence as undergone, directing the appellants therein to pay a sum of Rs.50,000/- of fine to be paid to the victim and prayed for some relief.

The High Court after taking into consideration all the circumstances including that the incident took place in 1989; the appeal before it was pending for more than 10 years; the prosecutrix had willingly accompanied the appellants to Meerut and stayed with them in the hotel; and she was more than 15 years of age when she eloped with the appellants and the appellants were young boys, reduced the sentence to 5 years which was less than the minimum prescribed sentence for the offence. As the High Court itself has awarded the sentence less than the minimum sentence prescribed for the offence recording special reasons, we do not think it to be a fit   case to reduce the sentence further in a proved case of rape of a minor. The appeals lack merit and are, accordingly, dismissed.