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Criminal justice system is ‘creaking’

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Narasimhan Vijayaraghavan
Narasimhan Vijayaraghavan
The author is practicing advocate in the Madras High Court

Justice N V Ramana, Chief Justice of India, due to retire on August 26th,2022 has waxed lyrical on human rights, alluding to the pathetic status of undertrials in India. And Justices Sanjay Kishan Kaul and M M Sundresh, picked up the theme and  went beyond, to counsel for an exclusive ‘Bail Act’ in India, akin to the one in the United Kingdom. And the Union Law Minister was not mute, as he flagged of huge pendency before courts- 4 crores plus in the entire judiciary. Honestly, all three issues are inextricably linked to each other. As if an umbilical connect.

But is it new and novel? We are celebrating the 75th year of our Independence. We became a Republic on 26th Jan,1950 and our Supreme Court took guard from Jan 28,1950, with six stalwarts. And the saga of A K Gopalan, in prison, on 14th Aug,1947 under British mandate, continued to be in prison, unfurled the national tricolour,midnight, when we became free, was the first of Constitution of Bench decisions. Only Justice Fazl Ali passed the smell test and the others failed, for multiple reasons. It took more than two decades for A K Gopalan strangulation to be eased in Cooper and Maneka Gandhi cases. And we are still groping for clear answers as Sedition law awaits the test before Supreme Court.

Nanabhoy Ardeshir Palkhivala talked of our ‘legal, moral and ethical illiteracy’ not deficit. All three are all pervasive in our criminal justice system. Chief Justice of India is spot on when he says, “Process is the Punishment in our criminal justice system”. It is ‘creaking’ said Justice V S Malimath Committee, decades ago and the report is gathering dust- competing with the multiple directions of the apex court in Prakash Singh case, with clarion calls for reforms. Both are fathoms deep,  with no sight of getting second wind or any wind at all.

Justice V R Krishna Iyer infused life into ‘bail/jail reforms’ and put together a platform for free legal aid in Sunil Batra. Justice P N Bhagwati carried it forward to rescue undertrials in Hussainara Kharkov. Thereafter… it has been tall talk, more talk and more and more.

If anything, pendency has exacerbated the problems. Chief Justice of India countered Kirren Rijju, with ‘delay in appointments of judges and absence of adequate infrastructure support’. Well, there may be merit in it. But not wholesome truth. Truth is tainted by such back and forths. Seminar circuits have been busy offering platforms to resource persons to add to the mountainous heights. Tomes are not wanting.

Is there one core and good reason for the ills afflicting the judicial system impacting the lives of the commoners? Yes, said Chief Justice M Chagla. And he illustrated it with evidence. It all boiled down to the quality of personnel. The men who man the benches from the lowest in hierarchy to the pulpit, must have the ‘credentials’ to occupy the position. While we must aspire for ‘diversity and inclusiveness to avoid the Tyranny of Merit’ as the Harvard Professor Michael Sandel says, we should not be seen to be ‘sacrificing it for the sake of it’ said Chagla. Truth and reality must lie in the middle.

The incumbent Chief Justice of India did lead an overworked Collegium and got through a lot of appointments and transfers. Yet, the backlog continues. Not his fault. It is a systemic fault. Where is one to go for ‘quality’ when Nani’s illiteracy criteria looms large? Legal education is wanting. The better ones go for the Corporate portfolios and well established firm culture. The left overs come to practice as last resort or no other resort. Including me.

The ‘numbers’ on the Bench does not help. Me not saying it. Read M C Chagla, “ It is necessary to say a word about the judges I selected when I was Chief Justice. One principle I invariably followed was that any lawyer who came to see me to canvass for a judgeship was automatically ruled out as far as I was concerned. I hold the view that a lawyer must be invited to come to the Bench; he should not seek that high office on his own. And none of the judges I appointed ever canvassed, directly or indirectly, for that office. It was I who had to ask them and sometimes even beg them to accept a judgeship. I was also very clear in my mind that unless  I had a suitable person to fill a vacancy, I should allow the vacancy to remain infilled rather than appoint an unsuitable person to that post. Mere increase in the number of judges does not necessarily improve the quality of the work, nor does it result in reduction of the arrears”. Peter Principle in action!

Here is my two penny contribution. The system is creaking. No doubt. Senior Advocate Harish Salve goes brutal to say it is ‘broken’. And it needs fixing. The issues flagged off by the Justices and the Union Law Minister are intermingled. It deserves structural changes. And we have reports galore gathering dust. We have to make do with the system we have. We are like that only!

But then the million dollar or the inflationary rupee question, falling close to Rs.80/- per dollar is – Where are we to go for quality that M C Chagla alludes to? Is our legal education and legal,ethical,moral literacy that Nani Palkhivala spoke of, up to speed? Let us be real. We can exchange words. We can debate on reasons. We can even loudly blame each other across the aisle. Where is the TRUTH?

For, the  bottom line is the inexorable TRUTH, that stares at us. You be the JUDGE.

(Narasimhan Vijayaraghavan- Author of Making/Working of Constitution- OakBridge, 2020/2021- practising advocate in the Madras High Court)

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Narasimhan Vijayaraghavan
Narasimhan Vijayaraghavan
The author is practicing advocate in the Madras High Court
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