JOIN USOnus on judiciary
The nation’s blood is up against the incident of gang rape of a young girl in Delhi. The incident was a trigger that galvanised the whole populace, the youth in particular, to take to the streets against the horrendous act.
It seems that the whole country was like a cauldron seething with anger against the total denial of justice and shabby treatment to the common people by the system. Delhi was immediately under siege.
What began as a candle march protest soon transformed into big movement which besieged Rajpath for the first time. It is heartening that the protesters have not allowed the self-styled leaders of the civil society to hijack this movement though some of them tried to fish in the troubled waters.
But it is time that non-political leaders and intellectuals of the society step into to give direction so that this mass upsurge does not peter out as has happened earlier; it should lead to major overhaul of the justice delivery system.
The state has failed to act as a protector which is its primary and traditional function and the classical liberal thought regards it as the only legitimate function of the state. This is borne out by older British and American judicial decisions which recognise defence, foreign affairs, police and the administration of justice as the legitimate functions of the state.
Thus, state functions that directly affect the common man are the policing and the administration of justice, and the two are inextricably intertwined.
The judiciary and the police are integral part of the justice delivery system which is in a moribund state. There is a soppy demand to amend the law for providing capital punishment in cases of rape.
It is an emotional outburst as an emotionally surcharged people are demanding the heads of the rapists little realising that it is not the absence of law but its enforcement which is responsible.
The harsher the punishment, the more there will be chances of acquittal. Death sentence is not easy to be awarded. Even if awarded, it is not carried out. There are 45,603 rape accused in the country at the moment.
It is simply not feasible to execute all of them. The challenge is to enforce the existing laws effectively. It is not without any reason that India has earned the sobriquet of a soft state. The main problem is that the police are corrupt and the judiciary is not accountable.
The police have not become people’s friend; it has become a long arm of the state sub-serving the powers-that-be. According to the UNDP report of 2011, FIRs are not registered in 72 per cent cases of rape as the police say that they do not have time for these things as they have to look after the law and order. But how does it look after law and order? Take the instant case.
A girl is raped in a moving bus in the capital between 9 and 10 pm and it is not stopped anywhere. It is not the first time that rape has been committed inside a bus. Why is there no random checking of vehicles?
Not independent
The investigation is not independent as it is not insulated from the general policing. The prosecution is not autonomous either. Several countries have independent directorate of prosecution. When the case reaches the court, after much hiccups, there begins the story of procedural rigmaroles, adjournments and delays, besides huge expenses that one has to incur on lawyers and court matters.
Delay is not the only scourge. When there is disposal, what is the quality of disposal? Take the case of Jessica Lall. Thirty-five witnesses turned hostile, but still there were incontrovertible evidences against Manu Sharma. Veena Ramani stood by her statement till the end that she saw Manu Sharma shooting Jessica Lall. But Judge S L Bhayana, in a travesty of justice, interpreted the whole evidence is to the advantage of the accused.
Is it a coincidence that he was elevated to the high court immediately after delivering the judgment in that case?
On the same evidence, the Delhi High Court set aside the judgment given by Bhayana and convicted the accused. Not finding any rationale to acquit the accused, the high court passed a strong stricture against Bhayana.
The irony is that no action can be taken against judges for their judgments under the Judicial Officers Protection Act; not only that, corrupt judges are rewarded. Further, Justice R S Sodhi of the Delhi High Court had initiated proceedings against the witnesses for perjury who turned hostile under sectionn 140 of the CrPc. but nothing has happened so far.
Similarly, in the Priyadarshini Mattu rape and murder case, the accused was acquitted by the trial court. When the appeal was filed in the high court, it was not heard for six years on the facetious ground that the document could not be translated into English. But when the issue was taken up by the media, the accused was convicted within four months. How do we explain this paradox?
The basic cause of delay is that the judiciary is not accountable. Incompetence and lack of integrity are the main cause of delay. There are many judges of high courts and even the Supreme Court who have hardly written any independent judgments.
Judges are not accountable in other respects also. Judges of the Supreme Court do not follow the doctrine of stare decisis (precedent).
This total erosion of judicial collectivism leads to complete uncertainty about the legal position on several issues. If it is to be ensured that there is no repeat of such horrid acts, the judiciary and the police must be made accountable.