The public needs both gavel and pen

The public needs both gavel and pen

The public needs both gavel and pen

SIDARTH VARDRAJAN IN THE HINDU

The Supreme Court’s proposal to impose guidelines on how to report cases will be harmful to press freedom and democracy, the bedrock of which is an informed public.

The Judiciary is the third branch of government. As with the Executive and Legislature, the public has a right to see and know and understand the functioning of this branch. That is why India, like every other democracy, has embraced the concept of open court proceedings and trials, except in those situations where, for security or other compelling reasons, in camera hearings are required.

In the Mirajkar case (Naresh Shridhar Mirajkar And Ors vs State Of Maharashtra And Anr on 3 March, 1966) a nine-judge Bench of the Supreme Court under its legendary Chief Justice, P.B. Gajendragadkar, held that “save in exceptional cases, the proceedings of a Court of justice should be open to the public”.

“A Court of justice is a public forum”, the 1966 judgment declares. “It is through publicity that the citizens are convinced that the Court renders evenhanded justice, and it is, therefore, necessary that the trial should be open to the public and there should be no restraint on the publication of the report of the Court proceedings. The publicity generates public confidence in the administration of justice. In rare and exceptional cases only, the Court may hold the trial behind closed doors, or may forbid the publication of the report of its proceedings during the pendency of the litigation.” (emphasis added)

Unrestricted openness

Once the objective of a public trial in open court is accepted, it is obvious that this openness cannot be restricted to those members of the public who have the facility and inclination to be present in a given court at a given time; rather, the reference is to the wider public, to the citizenry as a whole. The only way court proceedings, and the wider functioning of the judicial system, can be subject to public scrutiny is if the media — who are the people’s eyes and ears — have the freedom to both be present in open court and to give an account of what transpires in open court.

It is thanks to contemporary newspaper reports of the day-to-day hearings in landmark cases like Kesavanada Bharati (1973) (certainly in The Hindu, and perhaps elsewhere too) that the public then — and legal scholars now — have an accurate picture of all the intricacies involved, including the oral arguments made and questions raised by the Bench. Many more such examples can be cited.

To be sure, covering the courts requires skill, competence and some domain knowledge of the law, in much the same way that coverage of foreign policy, defence, business and finance, and even politics requires reporters knowledgeable about those subjects. The Supreme Court has seen fit to specify that accredited correspondents must possess a law degree; it has also quantified the amount of reporting experience, at different levels of the judiciary, that these correspondents must have. No other branch of government or public or private institution — not the armed forces or Defence Ministry, not the Ministry of External Affairs, the Police, the Ministry of Agriculture or Health — has insisted on a degree or professional qualification as a condition for accreditation. Nor to my knowledge is a law degree a requirement to get accreditation as a correspondent to the Supreme Courts of the United States, Canada, the United Kingdom, South Africa, etc. I raise this point here not to challenge the Supreme Court of India‘s system of media accreditation, but merely to note that having raised the bar for entry, imposing further restrictions in the form of guidelines on these correspondents — all of whom have been allowed in precisely because of their knowledge of, and sensitivity towards, the functioning of the Court — seems especially superfluous.

No doubt the most experienced and knowledgeable reporter can make a mistake on a particular matter. These mistakes can be harmless, hurting only the reputation of the concerned journalist or media house. But there can be mistakes which have consequences for the reputations of the parties to a case and their counsel, or to the Bench and Court. If an error by a reporter has adverse consequences for the reputation or standing of the Court or plaintiffs, remedies exist under existing statute and court procedures and it is up to the Bench or the affected parties to invoke those remedies. If a factual mistake has been made, or wrong information conveyed, no media house can claim immunity, on the basis of press freedom, from the ordinary process of law. If the error is innocent, and the Court is convinced this is so, the matter might rest with a simple apology; if, on the other hand, mala fide is suspected, the Court is empowered to take punitive action.

Given these remedies, none of which are necessarily inconsistent with constitutionally guaranteed press freedoms, it would seem unnecessary to impose a regime of “prior restraint” or even “temporary postponement” via guidelines on what aspects of court proceedings may be reported. Indeed, such a regime would have a chilling effect on media coverage of the Supreme Court and, eventually, the entire judiciary, at great cost to the general interest of society.

It is true that the Law Commission has recommended ‘postponement’ of reportage citing jurisdictions such as Australia and Canada, where jury trials are sought to be insulated from public opinion. But in India, there is no trial by jury; and surely the judicial independence of judges — and their vulnerability to what appears in the media — cannot be the same as that of the average citizen-juror.

Of course, it is a matter of concern that sections of the print and visual media sometimes report police accounts of crimes without the necessary qualifiers demonstrating that the truth of the matter is not known. Worse still, these accounts are often attributed not to named officers but to ‘anonymous’ police sources. An individual may thus stand “convicted” in the eyes of the public without any recourse to corrective measures. The bald reporting of a petitioner’s claims or accusations can also mislead the public if presented as fact. These are real problems that require remedying. However, a true reading of Article 19 of the Constitution requires that the press regulate itself in this regard and strive, as a collective, for the highest ethical standards. Given the public’s growing disenchantment with the media in the wake of various scandals, it is also in the media’s interest to heal itself. This is a subject journalists are pursuing at multiple levels within the print media and there is also the oversight of the Press Council of India, which, under the chairmanship of Justice Markandey Katju, has re-energised itself. Imposing further judicial restrictions on democratic access to information concerning Supreme Court proceedings would amount to overkill.

Undermines people’s right

My apprehension is that if the Supreme Court, which sits at the apex of the third branch of government, were to insist that reporters covering it abide by guidelines that the Court itself lays down, this would open the door to the other branches of government — that too, at all levels — making similar demands on the media as a precondition to gaining access to Parliament and Legislatures, Ministries, public institutions, hospitals, universities, etc. The natural instinct of most politicians and bureaucrats is to hide or suppress information on one pretext or another. The adoption of media guidelines by the Supreme Court would embolden them, further undermining the public’s right to be informed. Recently, for example, a Karnataka Assembly committee tasked with investigating the scandal involving Ministers caught on camera watching pornographic material sought to blame the media for recording what the Ministers were doing. Shouldn’t you be focusing just on the official Assembly proceedings, journalists were asked.

Courts in open societies elsewhere, particularly in North America, may have had occasion to be upset with media coverage of cases but they have not sought to frame guidelines of the sort being envisaged by the Supreme Court of India. The only etiquette rules courts in the United States seem to focus on are the circumstances under which journalists may use recording devices and cameras. Today, the debate on this issue in the United States is focused on whether journalists should be allowed to carry mobile devices into the Supreme Court so that they can “tweet” live from inside without having to come outside the courtroom. The court forbids this. At issue, however, is not the right of the journalist to provide near-live coverage of a hearing, should she so desire but only whether she can use the communication technology on court premises.

Of course, journalists and editors should be honest in accepting that the reason the Supreme Court — and the government — want to step in is because the media act as if they are not accountable to anyone. Aggrieved citizens have no forum they can approach for an effective and swift remedy in the event of being injured by misreporting. Unless newspapers and television stations get serious about self-regulation, the pressure of external regulation will always remain.

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Cannot ban news as it is perishable, Supreme Court told

NEW DELHI: As Supreme Court Wednesday explored the option of postponing the publication of court proceedings in sensitive matters, including criminal cases, it was told that news was a perishable commodity which lost its value, if banned.

“We are not banning but are invoking the doctrine of postponement. It is a question of the timing” of the reporting of court proceedings, Chief Justice S.H. Kapadia told counsel Anup Bhambhani who appeared for News Broadcasters Association ( NBA).

While evaluating the option of postponing the publication of the court proceedings, the court indicated that it may frame guidelines as had been done in some specific cases. The postponement of the publication of the ongoing court proceedings in a case would amount to ban for a certain period thereby rendering it useless, Bhambhani told the apex court‘s constitutional bench of Chief Justice Kapadia, Justice D.K. Jain, Justice S.S. Nijjar, Justice R.P. Desai and Justice J.S. Khehar.

“News is a perishable commodity. If its publication is banned then it would lose its news value,” Bhambhani told the court adding that the “practical effect of what the court is contemplating would be something it had not even thought of”.

The court asked “can media analyse the evidence even before the court had done and prejudice the case of the accused facing trial”. The judges said this on an application by the Sahara India Real Estate Corp agitating its grievance over a news channel reporting its proposal made to the Securities and Exchange Board of India on securing the money it had mopped up from the market.

On an application by Sahara, the court said it would frame guidelines for reporting of sub-judice matters. Bhambhani said an accused facing trial in the 2G case could in future approach the court saying the media should be restrained from reporting the court proceedings in his case as it was affecting his business interest. “It (postponement) will open a Pandora’s box.”

He favoured putting in place guidelines as the broadcasters had already done for themselves under the stewardship of former chief justice J.S. Verma. Senior counsel Fali Nariman, appearing for Sahara, told the court that under Article 19 of the constitution people had a right to know and the right to be informed.

He said that live telecast of parliament proceedings were the satisfaction of the right to know and the right to be informed. Every citizen has a right to know what their elected representatives were doing in parliament even if they were staging a walkout, Nariman told the court, suggesting that the court proceedings could not be shielded from the people.

Addressing the court’s option of postponement of publication of court proceedings, Nariman said that there could not be any preventive relief.

He said that courts were not empowered to make such guidelines nor was there any statutory empowerment for then to do so. The court asked Nariman if he could suggest how to balance the freedom of press with the right of an accused facing trial. The court said that in Canada they do have some law and Ireland has guidelines that restrain one-sided reporting that causes prejudice to the accused.

SC to frame guidelines for reporting sub-judice matters; we need many more guidelines

SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

DHANANJAY MAHAPATRA IN THE TIMES OF INDIA

In a constitutional democracy based on rule of law, citizens operate under a golden rule: “The right to swing my fist ends where the other man’s nose begins”. This articulation by American jurist Oliver Wendell Holmes has conveyed to every one, including newspaper reporters, that their right to freedom of expression is not higher than the fundamental rights of others.

If a baseless swing of a reporter’s pen scratches another’s nose, then he faces law like ordinary citizens. But, some grave and incessant misreporting in media in the last few months has forced the Supreme Court to constitute a five-Judge constitution bench to deliberate on framing reporting guidelines on sub-judice matters.

The exercise is welcome. The guidelines will, probably, contain the golden principles telling reporters what to report and what not to, and importantly, how to write a news report. In the Indian Express judgement [1985 (1) SCC 641], the apex court had said the right to freedom of expression enjoyed by reporters could not be subjected to additional restriction other than those provided under Article 19(2) of the Constitution.

The SC had also said: “Freedom of press is the heart of social and political intercourse…. Newspapers being purveyors of news and views having a bearing on public administration very often carry material which could not be palatable to the government and other authorities. With a view to checking malpractices which interfere with free flow of information, democratic constitutions all over the world have made provisions guaranteeing the freedom of speech and expression laying down limits of interference with it.”

“It is the primary duty of all national courts to uphold the said freedom and invalidate all laws or administrative actions which interfere with it, contrary to the constitutional mandate,” it had said.

Even if one takes that framing of guidelines for media on reporting sub-judice matters is a pressing issue, would it be more important than about 30% of the country’s population going hungry every day even after 62 years of India becoming a republic? When a vast humanity is living below poverty line and yet the government jokes that those who spend Rs 29 a day are not poor, doesn’t it ring an alarm bell about something being seriously wrong with governance? How about a guideline to make the right to life of one-third of Indians a little more meaningful? Would the SC attempt it?

The poor have been waiting for justice for years with no signs of better times in the immediate future. Another six crores (it would be much more but we take a very conservative estimate by assuming that only two persons are involved in each of the nearly 3 crore cases pending) are waiting for years in a labyrinthine queue for justice. Should the excruciating delays result in denial of justice? Would a guideline to limit case life to 2-3 years not pressing enough?

Talking about maladies faced by the country, the Vohra committee report in the 1990s pinned the blame on the unholy nexus among police-criminal-bureaucrat-mafia-politician. The SC in the Vineet Narain judgement dealt with this issue but did not issue a guideline to break the nexus.

It had also dealt with hawala scam in the 1990s and black money only two years ago. According to a conservative estimate by the National Institute of Public Policy, black money in our economy is around Rs 37,000 crore, which is a little more than one-fifth of the gross domestic product (GDP). It is an admitted position that on a conservative estimate the black money in circulation in India would match the quantum of white money. Should the SC not put forth guidelines to unearth the black money? A two-judge bench of the SC did make an attempt. But, the order is in limbo as a fresh bench hearing the Centre’s review petition gave a split verdict.

To give a specific example, the Rs 14,000-crore Satyam scam happened because of alleged deliberate auditing manipulations by chartered accountants of a reputed firm. With the plummeting share prices, dreams of millions crashed. Should the Supreme Court not frame guidelines for chartered accountants on how to audit, at least when it involves big listed companies?

For framing of guidelines, we must not forget the riots and its virulent kind, the communal riots. The apex court has dealt with the two most notorious ones in the history of modern India – the 1984 anti-Sikh riots and the 2002 post-Godhra riots. It did a great job in the 2002 case. It brought the perpetrators to book by breaking the shield provided to them by those in power. Should the SC have not framed guidelines for both police and governments on how to deal with communal riots? A guideline for rehabilitation of victims and prosecution of culprits would also not be out of place.

SC will begin contemplating ‘framing of guidelines’ for court reporters

Supreme Court of India

MID DAY

Come Tuesday, the Supreme Court will begin contemplating ‘framing of guidelines’ for court reporters. How the hearings play out affects both reporters and you, the citizen

Picture this: After months of waiting, your property dispute or society imbroglio finally comes up for hearing. Enter the court reporter — seeing his presence in the court causes a palpable impact on the behaviour of lawyers and judges alike.  However, if the Supreme Court of India has its way this Tuesday, court reporters across India will now have to follow guidelines on how to report matters of their beat. The court will be hearing interventions in the matter of ‘framing of guidelines for reporting of cases in media.’

The guidelines the Supreme Court frames potentially impact coverage of all courts in India. In 2007, the SC had also framed a similar set of norms for accreditation of legal correspondents covering the apex court, which, among other things, insisted that journalists have a law degree, and a certain amount of experience. On March 20, a Constitution bench of the Supreme Court led by Chief Justice of India SH Kapadia took up the issue of framing guidelines for the media to report cases in courts. The setting up of the Constitution Bench by the CJI comes in the wake of misreporting of court hearings and leaking of confidential information affecting litigants.

Open court
Veteran journalist and columnist MJ Antony considered the impact the move would have on the freedom of the press. “If a report is found to have been in violation of the guidelines, are we going to scrutinise individual paragraphs to prove it? Who will be held liable for the mistake? What is the punishment and what is the remedy?” Besides, he points out that all media organisations have their own code of conduct, besides which exist bodies like the National Broadcast Association and the Press Council of India. Advocate Madhavi Divan, author of Facets of Media Law, a commentary on aspects of media law and its regulation emphasised that the ‘open justice system’ must not be forgotten. “Traditionally, any member of the public could come in and watch court proceedings. The logic of this has been that the public should be allowed to understand the administration of justice. As they say, ‘justice must seem to be done’.”

But she adds that the media is in a slightly different position. “Unlike the American Constitution, ours confers no special status to the press beyond ‘freedom of speech and expression‘, but the media still remains a trustee. The public relies on the media for responsible dissemination of news, and this must be taken into account. As long as the guidelines do not unreasonably restrict the freedom of speech and expression, the media cannot protest.”  Welcoming the move, court reporter-turned-advocate Rajiv Wagh said, “Reporting court proceedings is quite different from covering politics or crime. One does not need technical knowledge to cover those subjects. Some training imparted by news organisations would be helpful. The court itself could also consider running short training programs specifically for court reporters.”

To some extent, adds Antony, the media can correct its own mistakes. “If a doctor makes a mistake, the patient may die. If a structural engineer makes a mistake, a building might collapse. But if a newspaper makes a mistake, it can issue a clarification and rectify it.”

The biggest problem, say journalists, is the lack of a proper channel to dispense information from courts in real-time. Many orders and judgements are uploaded on the Internet, but that is often too late for reporters to make a good story of. Reporters must also be familiar with the laws of contempt, in order to safeguard their interests and yet manage to break stories.

Motive and Intent

Above all, added Wagh, your motives should be clear. “You can tell from a report when a story is motivated. When your motives are clear and your only  intent is  to get the truth out, you will rarely get into trouble.”  There is also an urgent need to implement a system of cross-verifying what a reporter hears in court. Divan said, “There has been talk of implementing video recording, which would go a long way in preventing inaccuracies. Abroad, every word uttered in court is recorded in writing, so the question of misreporting doesn’t arise.”

Concluded Divan, “It is unfortunate that the courts have had to step in; it should not have come to this. The media ought to have regulated itself from the outset.”

http://www.mid-day.com/news/2012/mar/250312-SC-will-begin-contemplating-framing-of-guidelines-for-court-reporters.htm

Dignity is her birthright

Dignity is her birthright

Dignity is her birthright

JUSTICE PRABHA SRIDEVAN IN THE HINDU

The state should not forget the human rights perspective while dealing with a victim of sexual violence. It should not doubly, trebly victimise her.

Women do not walk in a state of perpetual consent. But women do seem to labour under a delusion that it is safe for them to walk in public spaces, to travel in buses and trains. It obviously is not. They can be raped. It is difficult to understand rape. Rape is not about chastity or virginity. Long before these concepts were constructed, long before the institution of marriage was founded, a man raped a woman whenever he broke her sexual autonomy without her saying “yes.” It is a violation of her right to equality and her right to live with dignity which “We” promised ourselves when we gave to ourselves the Constitution. Surely women are included in the “We” of the Preamble, aren’t they?

Rape is the destruction of dignity through invasion of another person’s body without her consent. I use the word “her”, though the victim of this violence can be a child, a woman or a man. The anatomy of rape is common to all. But I will continue to use the pronoun “her”, since the majority of victims of sexual violence are female. Rape is a deliberate negation of the right over one’s body.

This right is born with us. It does not require a development of maturity or the consciousness of one’s body to acquire the right. So a girl child who is raped when she is 11 months old does not suffer less, nor is the crime less dark and bloody because the child does not know that she has the right not to be invaded. The consent that is required to make the sexual act not a rape must be understood as an active assent to the act. The consent cannot be presumed merely because a woman does not say “no”. She might not have said “no” because she was paralysed by fear, manacled by coercion or pounded by force. She might not have said no, because she was mentally damaged, incapable of making a decision in this regard; she might have been an infant, or disabled from moving because of physical incapacity. Yet it is rape. Only it is blacker if there is such a colour. It is the invasion of a woman who cannot say no.

Act of subjugation

It strips the victim of her dignity, it is intended to. It is an exertion of power, an act of subjugation, a statement that divests the victim of her right of control over herself and renders her an object. It is meant to objectify her. The dilution of the horror, by using words like “he lost control” is unjustified and is an insult to a woman. The violator does not lose control, but exerts control through the act of unspeakable violence.

In the Prosecutor v. Jean Paul Akayesu, the International Tribunal held that rape is a form of aggression, the central elements of which cannot be captured in a mechanical description of objects and body parts. It noted “the cultural sensitivities involved in public discussion of intimate matters and recalled the painful reluctance and inability of witnesses to disclose graphic anatomical details of the sexual violence they endured.” It was intended to reconstitute the law’s perception of women’s experience of sexual violence.

In a sensitisation programme for judicial officers, an exercise was given which would give a clue to the rape complainant’s feelings in court. All judicial officers were asked to close their eyes and imagine the experience of their first union with their loved one. Then they were asked to narrate it to the colleague sitting on their right. They were horrified at this intrusion of their privacy. Then the trainers asked them: “If you cannot narrate a pleasant sexual experience to a friend without inhibition, how do you expect a frightened woman in a strange court hall to narrate fluently, in the presence of a battery of hostile lawyers, her devastating experience of sexual violence?” The officers had no answer.

But what is the reality? She is broken by having to repeat the incidence of rape again and again. “Madam, what was he wearing at the time of the occurrence? Did his tee shirt have a collar or no?” Oh yes, she can surely recall in vivid freeze-frames of “the occurrence.” And who will save her if she falters just once in the witness box? “See your Honour, the accused was wearing a blue striped chaddy, but she says red … totally unreliable, Your Honour.” The Supreme Court has given strict guidelines on how her evidence should be weighed, and how her complaint should be assessed.

But a poor child who does not know an Ambassador from a Fiat was disbelieved by the trial court, until the Supreme Court came down with all its majesty to the rescue of the child and noted that the prosecutrix was a village girl studying in class 10 and her ignorance of the car brand, was irrelevant (State of Punjab v Gurmit Singh 1996 (2) SCC 384.)

‘Distinct concepts’

In the Amnesty International publication, “Rape and sexual violence — human rights law and standards in international courts,” we read how the human rights perspective must never be forgotten while dealing with sexual violence.

Sexual autonomy cannot be understood outside the umbrella of human rights. Its violation must be criminalised. The report says, “Unfortunately, however, sexual autonomy is frequently conflated with narrow views of ‘consent’ under domestic criminal law which do not capture the reality of how acts of rape and sexual violence are committed … Sexual autonomy and consent are two distinct concepts. The concept of ‘consent’ as used in domestic criminal law imports a notion of individual choice, typically without a consideration of the reality of abuse of power (whether evidenced through physical force, or other forms of coercion) and other factual conditions that may prevail before, during and perhaps after the sexual acts in question. A consideration of whether an individual was able to exercise sexual autonomy, by contrast, takes into account the overall dynamic and environment surrounding those sexual acts and how these had an impact on the victim’s ability to make a genuine choice.”

A woman who is raped goes through a variety of feelings like denial, self-hate, grief, degradation, suicidal impulse and more. She falters in her narration, oh yes, she does, but not because she is a liar, but because the act of rape not only inflicts physical harm but also incalculable emotional and psychological harm. Chemical changes take place in her brain because of the trauma. She may go into a fantasy that someone will rescue her from this nightmare. Post-rape, she lives in a smoke world of truth and untruth, denial and depression, nothing is the same any more. She is screaming on the inside “please, please put the clock back.” This is just a short, incomplete statement of what is happening on the inside.

What is happening on the outside? The whole family is devastated, it even looks at her as if she somehow brought it on herself. “Why did you go there?,” “I told you not to wear that” and so on. So the woman wonders if the first enemy is the family. It is not in every case that the woman actually lodges a complaint, because she and her family know what will follow the complaint is worse. It is hell. It is not necessary to give the details of the experience on the way to the police station and inside the precincts thereof. The world looks at her as if she carries a stain on her all the time. She may never be allowed to forget the occurrence. So will a woman lie that she was raped?

The Amnesty International report reminds us that women and girls are not “likely to make false accusations of rape and sexual violence. This is a particularly irrational stereotype as women and girl complainants usually have very little to gain and everything to lose by making allegations of rape, there is rarely an incentive for them to lie; many complainants pursue their search for truth and justice at enormous cost to themselves, in terms of stigma and rejection by their families and communities.”

In this harsh reality, society and especially the state and courts must remember that they shall not doubly and trebly victimise her, nor raise a cacophony of distrust. It will only silence the voices against this horror.

(The writer is a former judge of the Madras High Court and Chairman of the Intellectual Property Appellate Board.)

SOURCE:Dignity is her birthright

HC dismiss PIL seeking stay of Rajoana’s execution

HINDUSTAN TIMES

The public interest litigation seeking stay of the operation of judicial order for executing Balwant Singh Rajoana, a convict in assassination of ex-Punjab chief minister Beant Singh and 17 others, was dismissed by the Punjab and Haryana high court on Thursday on the ground that the petitioner had no ‘locus standi’(legal stand) to file the petition.

The division bench comprising justice Hemant Gupta and justice AN Jindal said that earlier Rajoana had already refused to put appearance before the high court in the murder reference and had also declined the assistance of a counsel to defend himself on  government expenses. “He(Rajoana) has not even filed an appeal before the Hon’ble Supreme Court. This court has no such jurisdiction to stay an order passed by the Co-ordinate Bench(one of the courts in high court) by way of an interim order in a public interest litigation,” held the bench. A division bench of the high court on October 12, 2010 had confirmed Rajoana’s death sentence but converted another co-accused Jagtar Singh Hawara’s death sentence to life imprisonment.

The petition filed by an NGO, Lawyers for Human Rights International had requested that till such time the petition filed by the CBI challenging the earlier high court orders in the Supreme Court attains finality, the execution of Rajoana’s death sentence should be stayed, as there is a possibility of setting aside the high court’s order confirming Rajoana’s death sentence. The petititioner also submitted that a co-convict in the case, Lakhwinder Singh has also filed an appeal in the Apex Court.

However, citing an Apex Court’s judgment in a case of 1992 ‘Simranjeet Singh Mann vs Union of India’, the division bench said that the public interest litigation was dismissed in this case which was filed by a president of a political party challenging the conviction and sentence awarded to two convicts. The Apex Court judgment reads, “In the present case, no fundamental right of the petitioner before us is violated; if at all the case sought to be made out is that the fundamental rights of the two convicts have been violated. The two convicts could, if so minded, have raised the contention in the earlier proceedings but a third party, a total stranger to the trial commenced against the two convicts, cannot be permitted to question the correctness of the conviction recorded against them. If that were permitted any and every person could challenge convictions recorded day in and day out by courts even if the persons convicted do not desire to do so and are inclined to acquiesce in the decision. …”

The division bench also cited two more Apex Court’s judgments, i.e. in ‘Karamjeet Singh Vs. Union of India(1992)’ and ‘Ashok Kumar Pandey Vs. State of West Bengal(2004)’challenging death sentence of one Dhananjay Chatterjee, reiterating smilar view while dismissing PILs.

Timeline:

August 31, 1995 : Ex-Punjab chief minister Beant Singh and 17 others assassinated by a human bomb Dilawar Singh outside Punjab and Haryana Civil Secretariat.

July 31, 2007 : Trial court awards death sentence to Hawara and Rajoana. Gurmeet Singh, Lakhwinder Singh and Shamsher Singh awarded life imprisonment and Nasib Singh sent to 10 years imprisonment.

October 12, 2010 : High Court confirms Rajoana’s death sentence, converts Hawara’s death sentence to life imprisonment.

March 5, 2012 : Additional sessions judge, Chandigarh orders Rajoana’s execution on March 31 at 9 am.

March 22, 2012 : HC dismisses PIL seeking stay on orders of Rajoana’s execution.

Justice barred

SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

RD SHARMA IN THE TRIBUNE

Our judiciary creaking under the seemingly impossible load of cases awaiting disposal needs urgent attention if we have to avoid collapse of the system, which could put in jeopardy the whole state of orderly society.

Law courts no longer inspire public confidence, as litigants only get increasingly distant dates for their next hearings each time they approach them. The proverb “justice delayed is justice denied” too seems inadequate to describe the prevailing circumstances. Judgments come after endless wait, which ensures there is rarely any sense of satisfaction or justice. As pending cases pile up, the judicial system is not in a position to meet the challenge of arrears that have swamped courts from top to bottom.

According to the latest statistics available from the Supreme Court’s report on vacancies and pending cases, the apex court has now run up a backlog of 56,383 cases — the highest figure in a decade. The situation is similar in the country’s 21 high courts, where 42,17,903 cases are awaiting disposal. In lower judiciary, which constitutes the base of the entire judicial pyramid, the total number of such cases stood at 2,79,53,070 at the end of March 2011. And these figures do not include the cases pending in various tribunals and other quasi-judicial bodies. If those were also added to the grand total, the arrears in lower courts would well cross the figure of 3 crore, which is alarming, to say the least.

The right to fair and speedy trial holds little promise for the aggrieved who knock at the door of courts as a last resort for justice or relief. Invoking the law seems to mean only wasted years, heavy financial burden, besides emotional and physical trauma. Prolonged delays also mean high rate of acquittal in criminal cases — it is as high as 93.02 per cent in India. Unable to get justice from courts, victims often take the law into their own hands to settle scores with culprits. This only multiplies the problem of law and order, and in turn the load on courts. It has also encouraged kangaroo courts in the form of khap panchayats or lynch mobs in many parts of the country, which mete out rough-and-ready justice on the spot. The painfully slow justice delivery system also leads to corruption and lack of investment in vital economic spheres owing to uncertain contract enforcement, higher transaction costs and general inflationary bias, which the finance minister has also acknowledged.

TOO FEW JUDGES

Among other issues, inadequate judge strength at all levels is the main factor behind the delay and the resultant backlog. In proportion to its population, India has the lowest number of judges among the major democracies of the world. There are 13.05 judges per 1 million people, as against Australia’s 58 per million, Canada’s 75, the UK 100, and the USA 130 per million. In 2002, the Supreme Court had directed the Centre to raise the judge-population ratio to 50 per million in a phased manner, as recommended by the Law Commission in its 120th report. The suggestion has had little effect.

Even the existing judge strength is reduced further when judicial vacancies are not filled promptly. For instance, the Supreme Court had only 26 judges in October last year, including the Chief Justice of India, against the sanctioned strength of 31. The vacancy level in the 21 high courts of the country, if put together, is 32 per cent, with 291 posts of judge — against the sanctioned strength of 895 — lying vacant for a long time.

In subordinate courts, where we have the maximum backlog of cases, there are 3,170 posts vacant. The sanctioned strength of district judges has gone up to 17,151, according to the Supreme Court’s report on vacancies and pending cases. Filling these vacancies will have a direct impact on India’s governance indicators, improving investor sentiment and advancing economic growth.

If we look into the World Bank Institute‘s Governance Matters set of indicators specifically for rule of law, India had a percentile rank of 54.5 in 2010 (coming down from 60.3 in 2000), which compares ill to 97.2 for the Netherlands, 91.5 for the US, and 81 for South Korea. Other World Bank documents, quoting market analysts, say that it is not unusual for the first hearing in Indian courts to take six years, and the final decision up to 20 years.

SPEED UP SELECTION

The power of appointment to top judicial posts is vested in a collegium of senior judges, with the executive virtually playing second fiddle. Apart from being opaque, the system has simply failed to deliver. It is not uncommon for higher courts to remain without their full strength for months, or even more. The selection process, therefore, ought to be speeded up. Whenever a vacancy is expected to arise, steps should be initiated well in advance and the process of appointment completed beforehand. In the case of resignation or death, the selection process should come into play without delay to ensure that the Benches work with full strength. And, if the wholesome principle of merit, enunciated by the Law Commission, is accepted in principle, there is no reason why there should be any delay in determining appointments or filling vacancies.

Also, unless the judiciary is given full financial autonomy, the problem of pendency of cases or non-appointment of judges will persist. Funds are required for creating new posts of judge, increasing the number of courts and providing infrastructure. The judiciary has to petition the Law Ministry each time it needs finances, which are forever hard to come by. Less than 0.3 per cent of the Gross National Product (GNP) — or 0.78 per cent of the total revenue — is spent on the judiciary in India. This, when more than half of the amount is being generated by the judiciary itself through court fees and fines. In the UK, USA and Japan, the expenses on judiciary are between 12 and 15 per cent of the total expenditure.

Together with adequate manpower, it is imperative to simplify and reform the current procedural laws which provide ample scope to obstruct and stultify the legal process. Though of colonial antiquity and Kafkaesque obscurity and cumbersomeness, these laws have somehow survived despite their comicality in today’s eco-friendly and “paperwork unfriendly” times, a sure way to delay disposal of cases. In addition, there are myriad laws and other specious requirements, which have no relevance today, yet are frequently invoked. These must be repealed to expedite the judicial process. “Court procedure is not to be a tyrant but a servant, not an obstruction but an aid to justice, a lubricant and not a resistant in the administration of justice,” the Supreme Court has observed. After all, procedures are meant to help the law, not defeat it.

UNSCRUPULOUS LITIGATION

Impelled by the motivation of pecuniary gains, lawyers often indulge in unethical practices of stalling court proceedings deliberately. At every stage, a number of interlocutory applications are filed and adjournments on flimsy grounds sought to defeat the purpose of speedy dispensation of justice. Such is the situation that even expansion of the judicial machinery will not achieve much until rules about stay orders and adjournments are also changed to prevent lawyers from prolonging litigation. In addition, punitive fines should be imposed on unscrupulous litigants found to be abusing the process of law to discourage unnecessary or frivolous litigation and to make the judiciary self-supporting.

Instead of arguing their cases endlessly, it would be better for lawyers to present their submissions in writing to the judge so that cases could be decided on merit on the basis of documents and written submissions filed by both the parties before the judge, without the fanfare of formal court sessions and personal attendance of petitioners, respondents and lawyers. Direct written representation by the parties, rather than oral arguments spoken in the din and bustle of crowded courtrooms, would also lower the risk of miscarriage of justice. This practice, followed in the US Supreme Court (where oral arguments serve as additions to the obligatory written brief), can be easily adopted in Indian courts. Constitutional and corporate matters have little scope for courtroom histrionics.

Judges also ought to exercise restraint against the temptation of writing lengthy judgments running into several hundred pages, incorporating their social, political, economic and philosophical beliefs. The judge’s time is most precious and is paid for from the taxpayers’ money, and should not be wasted in expounding one’s personal ideologies. Justice, equity and fair play demand that judges are more crisp and precise while writing their judgments rather than rely on lengthy quotes and superfluous observations. They should deliver judgments as early as possible, instead of keeping them reserved for long durations.

AIM FOR CONCILIATION

The legal strategy for modern India should aim at conciliation and not confrontation, in keeping with our tradition of tolerance and mutual accommodation. The focus should be on “conciliatory legal realism”. A judge should not merely sit like an umpire, but participate in the efforts to iron out differences and encourage the parties to arrive at a settlement. This would help reduce the backlog of cases, avoid the multi-tier process and also lead to reconciliation of legal disputes without causing much enmity and bitterness.

However, any attempt at judicial reform, including raising the number and strength of courts, improving the selection process of judges or setting up evening and fast-track courts throughout the country to dispose of cases quickly will fail unless high courts succeed in establishing that they are reliable and just, and instil such confidence in litigants that they forgo the last resort of the apex court, except in rare cases. At the same time, if the trial courts at the grassroots level are also properly strengthened and made effective instruments of justice in the real sense, the cycle of appeal and counter-appeal could be broken and delay reduced. The litigation backlog would then melt like an iceberg in a tropical sea.

The writer is a legal consultant, and advocate at the Delhi High Court and the Supreme Court

SOURCE : http://www.tribuneindia.com/2012/20120313/edit.htm#6