May 14, 2010
Speak to any American about global warming, he would begin with statistics, describe with statistics and end with statistics representing third decimal place. But talk to any Indian about it, he would describe with an example, which would be a story. Why do Americans speak in numbers while Indians narrate stories?
America is a technologically driven economy, the mindset remains firmly technical, which requires a quantitative approach to everything. Things have to be measured to be convincing. But India has remained an agrarian economy, a peace loving country, where mathematics was restricted to greats and measurement was only done for weights and distances. Instead folklore and storytelling was common. Due to free time and lack of availability of written information, verbal communication became prominent. These things were later documented resulting in the longest epics, longest Constitution and judgments which go into thousands of pages.
British introduced a system of justice, which was based on verbal ability to talk and convince which matched with the normal talent. Indians thrived on it and produced eminent lawyers like - Gandhi, Nehru, Jinnah and others, who spearheaded the freedom struggle and fought with the best arguments. Legal practice earned a good name and earned a lot of money. The best students usually went to study law and were respected.
But post independence things began to change, industrialization set in and more people were drawn to other fields like- arts (Government jobs in a socialist economy) and later changed to other fields like- engineering and medicine. Legal profession lost out and it turned out that people who were not able to secure admissions in the first three fields, took this route. Legal Profession lost out. India produced good engineers, but not the pioneers in the field like it once did in Legal Field.
Today the Indian Judiciary is considered largely corrupt, slow and inefficient. The lawyers are seen as note-sucking monsters, who kill justice. They are themselves lawless citizens, extorting money from clients, spreading false rumours and thriving on fear and misinformation. There are over three crore cases and pending in different courts in India, thousands of lower court judge’s posts are vacant; over 144 High Court Judges posts are vacant. There is insufficient legal infrastructure and too many obsolete laws.
On an average there are 300 murders in a year in Delhi State, while the Criminal Courts can handle only 225 cases in a year, resulting in a backlog of 75 cases every year. To register ones statement, a witness has to visit the courts, several times due to adjournments. He faces threat and intimidation. Unless he has a missionary zeal to pursue the matter, he would soon lose interest in the court proceedings. Today the situation is so bad that people desist from approaching the courts for justice. Justice is slowly dying in our country. We could have the world’s best courts and most efficient justice, but we do not since, we are responsible for failure of the system.
The “declaration of guilt” by the Special Court to Ajmal Amair Kasab, has been hailed as a victory of justice in our country. He has been charged with the murder of seven persons and having common intent with the death of several others, conspiracy and waging a war against India. The charges levied and proved against him; show the archaic nature of the laws in India. Kasab was born to a poor family and basically a foot-soldier for LeT. Anyone aware of military strategies would know that soldiers only carry out commands and are not involved in drawing up a strategy; hence he didn’t strategize and conspire against India. If Pakistan Attacks India and we arrest a hundred Pakistani soldiers would each one of them be accused of waging a War against India, or would the Government of Pakistan face the charge. Hence, waging a war against India should be against LeT Commanders and not against their foot soldiers.
If you have ever attended court, you would know that for murder to be proved, intention is of paramount importance. If you randomly shoot a person on the road, in most cases murder would not be proved. The Judiciary asks the Police to prove intent. The seven persons Ajmal is said to have murdered didn’t have any personal enmity against him. Tukaram Omle had held him; hence Ajmal could say that he killed him in self defense. None of the people who were shot in short range survived, and he was spraying bullets, hence there is no way, any witness would have dared to poke head out to see him. They know that there was someone who was killed many people and Police did catch hold of him, but they certainly couldn’t be sure. I don’t say that he is innocent; I only say that the laws in India are archaic. Ajmal Kasab should have been declared guilty for mass murder and terrorism. The court shouldn’t waste time in proving that he killed each person individually. We have POTA and other Anti Terrorism Laws which can harass people than actually be used to punish the guilty. We hence need a complete review of the laws of country. There are too many loopholes, which must be fixed.
The Kasab case had daily trial and hence a verdict could be declared in 18 months. But if it went to a normal court, the trial would have taken at least 18 years, assuming the judge keeps one hearing a month. The conviction rate in India in criminal cases is only 13.1%. There are thousands of undertrials who spend years in jail and may finally be termed as innocent.
‘Your Honour’ is no longer honorable, with Judicial Corruption being rampant. I know Public Prosecutors who have taken money to close the best investigated cases and judges who would take a few thousands to give a favourable verdict, disregarding the evidence produced before him. We all have seen and felt the rot in the judiciary and we have pointed fingers too. But, this is our country and we have to cleanse the rot and not leave it as we would suffer in the future.
There needs to be a complete review of the Laws of all kinds, they should be simplified. There are too many bans and curtails on citizen freedom, which should be removed. The laws be stated in simple words and should be provided online or in simple booklets for all persons, to avoid harassment by the lawyers. This legal review should not be done only by a panel of jurists, but also should include people who have been on the receiving end of the judiciary- criminals, common citizens, lawyers, Law Enforcement Agents and Jurists.
There should be a method to review the judicial decisions at the next higher courts. There should be a panel which would go through the trial details, which is well-documented before accepting the appeal. There should be an extent till which a case can be appealed. Cycle theft cases have reached the Supreme Court. These cases just clog the judicial process.
The method of appointment of Judges to High Court and Supreme Court should be altered. There should be a panel of five retired Chief Justices of India. When a Chief Justice retires he joins the panel and the oldest amongst them leaves the panel. They must review the work of each judge continuously. They should have an Intelligence Wing & Investigation Wing under them to probe on the conduct of Judges. They should be vested with powers to remove Judges. Only the removal of Chief Justice of India should be by impeachment.
The Bar Associations have become Unions harassing clients and there are internal agreements between lawyers. Bar Associations should be done away with, giving independence for lawyers to practice in any court in India. This would allow free market competition, bringing down cost of justice and make judiciary more accessible to the people. Like doctors who can lose their practioner certificate, lawyers should lose their right to fight cases if they cheat their customers.
The Union Law Minister recently declared that in over 75% of the cases, the Government is fighting its own citizens. Many of them are legal entangles are because of numerous laws and hence a review of the cases must be carried to relieve the citizens from fighting long legal battles with their own Government. In Criminal Cases the District Superintendent of Police and the Public Prosecutor must be made responsible about the people they file charge-sheet against. There should be punishment for filing false cases. At the state-level DGP and the Advocate General should be responsible. If the higher Court changes the verdict of the lower court, the judicial panel must look into the matter.
We enshrined in our constitution’s preamble that India would secure to all its citizens amongst others things- Justice. Today Judiciary has become a monster and citizens of India suffer as a result. One is scared to speak out against it as anything is seen as an insult to the judiciary. If one loves India, he would raise voice against everything which is not right in this country and earnestly try to change it. One should not bowed down and stand up for what we believe in. We are genetically made in a manner, that we can have the best Legal System in the world.