By Sango Bidani:
Our judicial system prides itself in being one of the greatest things to have happened to Indian Democracy. Sadly, it is losing quite a lot of its sheen courtesy taking very long to clear cases which have been affected quite a few people some numbering in tens of thousands. The recent judgement of the trial session court that gave just two years in jail for the prime accused Keshabh Mahindra and other accused after the case had taken 26 long yrs to complete is a glaring example which shows that surely there are some gaping loopholes which cause almost all of the cases to take very long to be responded to.Â This is just one example in a series of examples that we can give to show that all is not well with our judicial system. So what really is the way in which our cases reach the court and where does the goof up actually begin?
The procedure for getting your case heard in the courts is that you have to first register a complaint with the police or in case of a financial or other case of dispute, through an affidavit the complaint is placed to the court. Now there are three levels at which the courts function in India as of now- Lower Court, which pronounces the intial sentence in the case concerned, then the High Court is the next court that you can approach in case you are dissatisfied with the decision of the lower court or you feel that you deserve another chance to defend yourself in front of a higher court and finally the Supreme Court, where high profile cases are taken and some other cases like death sentence and hanging. There is a huge difference between the Civil Courts and the Sessions Court (Lower Courts). While the Civil Courts look into issues like compensation of customers, dowry compensations, family issues etc., the Sessions Court clearly looks into the criminal aspect of a case and usually pronounces the initial sentence which can later be challanged by the accused in the High Court or if the need be, in the Supreme Court. The procedure for filing a Civil Case is much simpler and less time consuming than the procedure for filing a case in the Sessions Court. If you need to file a Civil Case, you just have to submit an affidavit giving the reasons why you have approached the court and what kind of compensation you want. In the case of a Sessions Court case you have to first file an FIR with the police who will then arrest the accused, produce the accused before a judicial magistrate and then he is sent to police remand. After that, the real tussle of providing evidence begins and the lawyer defending the accused will provide counter evidence. Usually the cases where a major accident has taken place and the people injured have to be paid their compensation are taken up by the Civil Courts apart from cases where Dowry Compensation has to be awarded as well as cases where Child Custody or family matters in general are to be looked into. These courts usually give their judgements fairly quickly and award compensation relatively in a hassle free way. However in the case of the Sessions Court Cases, the cases taken up include cases of murder, abetment of suicide, culpable homicide etc. and it is usually these cases that take quite a lot of time to be judged and many times the victims are denied justice.
There are various problems with this current set-up of hearing murder cases and cases where major leaders are involved or their sons are involved because there is pressure from above that is a political party or the father of the accused is from a political party that is in power at the time. Two interesting and woefully sad cases can be quoted here. One is that of the Anti-Sikh Riots where the leaders accused, namely, Sajjan Kumar and Jagdish Tytler are roaming around scot-free because they belong to the ruling party, Congress, which has the government both at the Centre and Delhi although the reason given by the court is lack of evidence which is complete illogical as there are many witnesses who saw these two Â instigating people to kill Sikhs in every part of Delhi. Yet another case where justice was not delivered because of political pressures was in the Sabharwal Case whereÂ ProfessorÂ Sabharwal was clearly murdered by ABVP leaders but because the trial was conducted in Madhya Pradesh where the BJP rules, the actual culprits roam around freely although here again the reason given was lack of evidence. Because of these extra political pressures from above many witnesses turn hostile fearing that they would lose their lives if they tell the truth. So clearly there is a problem regarding the witness protection. The other big problem that is plaguing the judicial system right now that is causing cases to take so long to be solved is the problem of the victim having to provide evidence that the said person has committed the crime. If he fails to do so, the accused will be allowed to be set free byÂ the courts. This is known as tort law where you have to provide evidence to judge the accused guilty. This is highly problematic as again because of extra pressures and removal of circumstantial evidence it can lead to theÂ acquittalÂ of the accused. This has shockingly taken place in the Uphaar Cinema Case where the accused were set free because the victims could not provide evidence to the court to convict the two accused. Though in the end they were convicted, it was only after ten years of continous struggle. The quantam of punishment was also highly insufficient compared to the magnitude of the incident. Here also the owners were sentenced to two yearrs in jail which was later reduced to one year. They were also asked to give Rs.1000 as fine. Infact the public prosecutor of this case had famously admitted that many a crucial information and evidence of the incident had been wiped out making it difficult to give a harsh judgement against the Ansal brothers. So these are the problems that plague the Indian Judicial System at present.
There are problems that do not have easy solutions. The one regarding witness protection needs a strict law which will ensure that the witness is protected from extra pressures and that the person who tries to force the witness to tell a lie in court will be sentenced to atleast 1 year in jail as a punishment. And it is high time we implemented the Supreme Court verdict in an Oleum Gas Leak case in Delhi where the Supreme court gave the following landmark judgement that the victims are not to be burdened with the responsibility of pinpointing the fault. In a departure from traditional tort law but responding to the realities of the increasingly sophisticated nature of technology and multinational businesses, it is considered fair to shift the onus of proof on the tortfeasor, i.e., the enterprise/multinational corporation in the Shriram Case.
There is a lot of work to be done if the judicial system has to rediscover its glory that has lost quite a bit of sheen. The task is uphill but as there is a saying, “Where there is a will, there is a way”. Hopefully that will prove to be the case with our courts in India.
The writer is a correspondent of Youth Ki Awaaz. With his interests in socio-political issues, he is more than willing to change the ‘system‘. He sees himself as an ethical journalist in the years to come.